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Afip

♦■ ;"»

■» (i*C"' *-*■■

^.AMES WHITE

CAl^ADA- ^ID Itr f ROVI^CES
A KICM^ or 1^ CASTAOUN nOPLI

»» tarn wtoonn AssocMTBs

ataTMOSV
ADAM SH0|l«rT,AMO A. C. OeUGHT?

'■■:?■ »9

BOUNDARY DISPUTES AND
TREATIES

BOUNDARY DISPUTES "'
AND TREATIES

■T

JAMES WHITE

TORONTO

GLASGOW, BWOOK & COMPANY
1914

SH¥-

wHn^ ^J

66o9(>

This Volume oonnsts of a Reprint, for

private circulation only, of the Fifty*

fifth Signed Contribution contained in

Canada and its Provincbs, a History of

tile Canadian People and their Institutions

by One Hundred Associates.

Adam Shortt and Ardiur G. Doughty,

General Editor*

N i

CONTENTS
I. From Fundt to Juan de Fuca

Introductory ...

St. Croix River Commission

Passamaquoddy Islands

The 'Due North' and 'Highlands' Lines

Arbitration by the King of the Netherlands

The British Statement

Statement on the Part of the United States

Second British Statement

Second United States Statement .

Award of the King of the Netherlands

Frontier Strife ...

'Battle of the Maps' . . ] _

National Rights through Occupation

Results of the Ashburton Treaty

Through the St. Uwrence Basin to Lake of the Woods

Boundao^ from Lake Huron to the North-West Angle of Lake
of the W oods ^^

Review of the Awarded Boundary under Articles VI. and VII
of the Treaty of Ghent ""«»".

Bryce-Root Treaty, 1908
From Lake of the Woods to the Pacific Ocean
Historical Review
British Statement
Statement of the United States '.
Occurrences, 1820 to 1840
The Oregon Treaty
Settlement in the Disputed Area
Review of the Settlement
San Juan Controversy
Award of the German Emperor '.
Hudson's Bay Company Claims
Surveys of the Boundary

II. Ontario-Manitoba Boundary
R^um4 of Differences
Hudson's Bay Company's Charter, 1670
Discoveries and Settlements in the Bay
Treaty of Neutrality, 1686
Treaty of Ryswick, 1697
Treaty of Utrecht, 1713
Treaty of Paris, 1763
The Proclamation of 1763
The Quebec Act, 1774

Page

751

763

768

779

790

798

801

80a

807

810

814

819

825

826

827

831

836

838

839

846

851

856

861

865

866

868

871

875

876

877

878
879
880
881
884
886
891
892
892

CONTENTS— C(ml»nu«d

The Constitutional Act, 1791

Judicature Acts, 1803 and 1818 .

Rupert's Land Act, 1870 ....

Arbitration of Boundary, 1878

Reference to the Imperial Privy Council, 1884

Review of the Differences ....

Map Evidence before the Privy Council

Review of the Case before the Privy Council

HI. Labbadob-Canada Boundaby

The Royal Proclamation of 1763

The Quebec Act, 1774

Imperial Legislation subsequent to 1774

Historical

Conclusions

IV. Alaska Boundaby

Ukase of 1821

Negotiations between the tlnited States and Russia
Joint Negotiation of Great Britain and the United States

Russia ....
The Monroe Doctrine
Instructions to Bagot
Bagot's Proposals
Modified Instructions to Bagot
Instructions to Stratford Canning
Treaty of February 28, 1826
The 'Dryad' Case

Neutralisation during the Crimean War
Sale of Russian America to the United States
British Request for Joint Survey, 1872
Boundary on Stikine River
Dall-Dawson Correspondence
British Protests

Boundary Survey Conventions, 1892 and 1895
Friction at Chilkoot and White Passes, 1896
Joint High Commission, 1898-99
Alaska Boundary Convention, 1903
Alaska Boundary Tribunal
Decision of Tribunal re Portland Canal
British Case
United States Case
British Coimter Case
United States Counter Case
Decision of the Tribunal
Review ....

with

Page
893
80S
895
896
867
807
902
905

906
909
912
914
916

917
919

919
920
922
922
924
925
927
928
929
930
930
931
931
932

935
936
938
939
941
943
946
out

960
951

BOUNDARY DISPUTES AND TREATIES

FROM FUNDY TO JUAN DE FUCA
Intbodvctoby

THE following article considen the international boun-
dary between Canada and the United States from
the Atlantic to the Pacific. So f ar aa chronology
it concerned, it includes negotiations and differences that
commenced in 178a, and that have, in some instances, con-
tinued down to the present time and are, even yet, unsettled.
Obviously, the demands of historical sequence require that
these differences be examined from the initial to the final
steps.

Boundary differences between Canada and the United
States respecting the line between the Bay of Fundy and the
Pacific can be most conveniently considered by a territorial
division from east to west, which also approximates to a
chronological division. They have been considered under the
following heads :

(1) St Croix River Commission.

(2) Passamaquoddy Islands.

(3) Line from the source of the St Croix River to the

River St Lawrence.

(4) Boundary through the River St Lawrence and

Lakes Ontario, Erie, Huron and Superior and
through the water-communications to the north-
westernmost point of the Lake of the Woods.

(5) Lake of the Woods to the Pacific, including the

' Oregon ' and ' San Juan ' boundaries.
The important 'date-line' of the territorial history of
VOL. Via V

75* BOUNDARY DISPUTES AND TREATIES

J^!f^^i.*'!!.'T^?^^*y°'»7*»- On November 30,
2n ?J*^ S^^'. *"\,*^ P^ °' Great Britdn. i£
John Adanu, Benjamin Franklin, John Jay and Hc»rv
Uuren.. on behalf of the United States, «^^ at P»ri. t£
pfovuwiuU treaty of peace. It acknowledged the indepen-
dence of the United States. "^^fea
Artidt n provided

^LfofT^'*'"!!*. "**•»,* '"^ « future on the

mv i Dri^t?r1^"^l '''u.*' "^'i United State
*rl .L ?ir^**°' ** » hereby agreed and declared

from ^north-west angle of Nova Scotia, viz.. that
Mgle which is formed by a line drawn duTnorSi ftoS
^m'hm!!**^?* Croix Wyer to die Highlands ;a£g^
Mid Highlands which divide those Hvera that^otv
tef^T ?*?u*\',^^ St Lawrenc^ fcSm^S
2S?I,S1 "i*?-*^* Atlantic Ocean, to the north-wes^
^t^thi^^'^l ^^ L *^*°<* <»o*n along the
Sim aIS^I?- r • ^J^^ *5th degree of north kS.de ;
S^Af%^ * J*"* **".« w"t on said latitude, until it
*Sr^^S*3*'^.''?^"*»»0'"Cataraquy; thence aW
mwr'^*^ «?^«>d nver into take cSrtaSo ; thrS^
middle ofsaid Laice until it strikes the o^mmuniation
SIShi^T'*^ **^ ^^ and Lake Erie; thenS^^
S! «S/f of said communication into Lake Erie ; throuS
the middle of said Lake until it arrives at the ^ratow
communication between that Lake and u£ H^"

JJtCf!?""'" ' ^^'^ P"°^^ t»>e nuddle of said Ldn
to the water-commumcation between that Lake and UIk

J?i^..2^ "'ii?*''?**'?*' to the Long Lake ; thence
through the middle of said Long Lake, and the wato!
commum^tion between it and &e iSeTthe WoSL
££*tr*hi^/''^t^«^«' thence through the^5
tfSJ^n^^"*** T*^ ■*^**'? P^**** thereof and from
ttience on a due west course to the River Missisrippi. .

^;^rJ"lI° ^ drawn along thelSddE^of the
River St Croix, from its mouth in the Bay of Fundy to^

SHi^llK^•^'?'^ *u™^y no4°trtii7afoS
^^k^^S^** "?"* *'ir'***' *« ^^" that fall into the
Atlantic Ocean from those which fall into the River

FROM FUNDY TO JUAN DE FUCA 753

St Lawrence; comprdtendiag all Island* within ao
leagues of any part, of the shores of the United States,
and lying between lines to be drawn due cast from the
Mint* whtn the aforesaid Boundaries between Nova
Scotia on the one part, and East Florida on the other,
, shall respectively toudi the Bay of Fundy, and the
Atlantic Ocean ; excepting sudi Islands as now are, or
heretofore have been, within the Limits of the said
Province of Nova Scotia.

On September 3, 1783, David Hartley, on the part of
Great Britain, and John Adams, Benjamin Franklin and
John Jay, on the part of the United States, signed at Paxia
the definitive treaty of peace. Article n of this treaty —
comnumly known as the Treaty of Pftri»-^s identical with
Article li of the preliminary treaty.

The foregoing description of die boundaries was based, in
part, upon the boundaries of Nova Scotia and Quebec as
defined in various acts of state. For geographical information,
the negotiators used Mitchell's map of North America, 1755.
While it was in many respecta a great advance on any maps
that antedated it, the fact that much of the country was
absolutely unexplored, and that mudt information obtained
by tha French was not available, effectually prevented any-
thing like accuracy in the modem sense of the word. It was.
in diort, only the best compilation possible with the limited
and inaccurate information available, and, unfortunately,
most of the errora founded on ite inaccuracies enured to the
injury of Great Britain. The net result of these erroneous
descriptions was that, instead of preventing disputes, they
were exceedingly fruitful of them, and, on several occasions,
brought the two nations to the verge of hostilities. An
additional difficulty arose from the fact that the n^jotiators
did not agree on an official map and attach it to the treaty.

St Croqc Pjvek Commission

Hardly was the ink dry on the treaty, when disputes arose
respecting the boundary. The first was with reference to the
identity of the St Croix River. The initial point, by Article 11,

1/ ?

754 BOUNDARY DISPUTES AND TREATIES

was the • north-west angle of Nova Scotia,' which wa. al«.

Je north-east angle of the United States wdSS^ tS

, On Mitchdl's map the River St Croix is indicated a. h^H

and designated Passamacadie Bay. While thewTT^ ^!^
nver. falhng into Pa««unaquoddy'^ka/J^per Se^^

falbTrth? W^^'" ^ ^'"^ '''^' ^« Cobscook!

MitdieU map are one and the same stream, or whetiiw aI

attributes the error to the use by Mitchdlof Soi^k'.
chart, 1733. and identifies Southack's RivwSt cL^STi
pajjage north of Deer Idand, and l5s P^^uSd^^^J
witii the passage to the south of it. "»~«aquoaay Kiver

Britain claimed that the Schoodic was the tru** St Cml,

branch were the source. Both streams drain bkn of-S^

the S "LJ ;- • 1 • ■. ">e.«ource of the west branch of
in^fvedTe oliL^f •*"*^*,^ '^^ ^' *«* '»"«'ti°» <" identity

to Great Bntam.,tb«UBen«eM.,ytt,p„^,p„i^2

FROM FUNDY TO JUAN DE FUCA 755

for die new poMeadona. Prior to the treaty, comminioiie
to the governors of Nova Scotia merely dexribed it as the
province of Nova Scotia or Acadie in America.' On
November at, 1763, a commiadon as governor of Nova Scotia
was issued to Montagu Wihuot. It defined his jurisdiction
as extending over

our Province of Nova Scotia, and which we have thought
better to restrain and comprise within the foUowuis
t^^ Tv J^ .*' northward our said Province ahdl
be bounded bv the southern boundary of our Province
of yuebec, as far as the western extremity of the Bay des
SiSl!? • -.-f^^^.o^T said Province has anciently
ottttded and does of nght extend as far as the River
Pentagoet or Pen<*acot, it shall be bounded by a line
drawn from Cape Sable across the entrance of die Bay
of Fundy to the mouth of the River St Croix, by the said
River to its source, and by a line drawn due nordi from
thence to the southern boundary of our Colony of Quebec.

The statement that Nova Scotia ' does of right extend '
to the Penobscot was omitted from later commissions. The
omission was, doubtless, compensation to Massachusetts for
the sunender of her claims to the country immediately south
of the St Lawrence, which by the proclamation of October 7.
1763, had been mduded in the new Province of Quebec

♦u V?* I u"* ^^?^' 'Of twenty years formed part of
the boundary between Nova Scotia and the colony of Massa.
Jusetts Bay, and attempts at its identification were made by
the authontiM of the two colonies. In 1764 John Mitchd
Tt^TSlfl*** determine its position. In his report he

S2?K L *»Pr?*°V***«'«^*^^<= » 'R- St Croix
aUled by modern Indians, but does not agree witii Champlain/
me modem Digdeguaah he designates die ' R. St Croix
aowidmg to Champhiin.' and an island at die moudi of

2f 5r^ 'S" " "*y'"* ' '• ^* ^"«' When in 1796^
!.^Kr K^ S**** commissionera were endeavouringto
estabhA die Magaguadavic as die true St Croix, mucS^rws
was laid on diis Wentification ' by die Indki. -SaTS
Indians ever caUed diis or any odier stream falling intJ
Paseamaquoddy Bay. St Croix, is more dian doubtful. Th^

756 BOUNDARY DISPUTES AND TREATIES
Mitcfcd de«red to ktoitify that pvtkukr rtiSo V^

ISrkS «. ^^'f T?* ***»•'«*• '^rthy erf not. that

W. eJ^J**!*.^*** '^ •urveyor-gweiml of Nov.
sSS*.«^^,^ '*»"*^ the goveSm«t 5 n2^
Swtia to mdte lud g«nt. to hinuelf mnd to hi. frfaSJ

^v^ i.*"^ "^^ •^'^ ^"^"^ he would h.Vj

made immediately ewt of the St Croix. In 176s Novl
S~to.gj«,ted, 00,000 ««. between the SchiSc iS

n^ ilir S?n. '^^?°"»'?" <*"• to a mi«e«Iing of the
r^i^ S?* ^^^<»«^. ''Wch defined AeSundJy!
m pMt, a. following, from the Muroe of the St CrobTai

th^ZT^'^*'*'!!"'::;*^ "~°«J^ toeKt«,dSrSuS

T^IT^ ^* "^* '*^' *>' Cwada; and going^
Aat ewtward along the tew Aoie. of the eJe river^
Can«d. • Map-makeiB, bring without any accurate W-
Wge of Je ge^phy of the territory, Undated '3^.
jam a.duenorth,and«)indicateditontheirm.pfc \S>
Ju. wj. obviously the only courBe then open to th^. we^
^w that the Une to the ' newest ' .trea^ptySS'irS,^
St Uwrenoe would run about west^orth-west to a piSt iJ
the present county of Beauce, Quebec.

th^^'-^^ ^f^^?^ ^y ""y^ prodamation. in 1763, of
the Province of Quebec, the boundary of Novk Scotia wm

FROM FUNDY TO JUAN DE FUCA 757

•homi M kXlowing the due north line to the ■outhern water*
■hedof the St Lawrence, and thence, eastward, fbUowiag the
waterdied.

Shortly after the iigning of the treaty of 1783, the
govemnwut of Nova Scotia, aMiuning the Schoodic to be the
St Croix, made grants of land on it eastern banlc to loyalist
refugees. At the instigatioa of John AUan, a prominent
revdutioaary partisan, this action was pitMnptly protested
by the Massachusetts government.

A commission appointed to make an investigation, stated
that the Magaguadavic was the St Croix of the treaty.
Statements were obtained fmn John Jay and John Adams,
two of the American negotiators of the treaty, and frmn the
John Mitchel who, in 1764, had been employed on the same
mission by Governor Bernard. Adams, in a letter dated
October 35, 1784, states that the Mitchell map was used by
the negotiators ; that the 'St Croix, which we fixed on, was
upcm that map the nearest river to St J<Ans ; so that in all
equity, good amsdence and honour, the river next the
St Johns should be the boundary '—a somewhat novel line
of argument.

On the strength of this report Governor Hancock of
Massachusetts requested Governor Parr of Nova Scotia, ia
the interests of peace and harmimy, to recall ' those subjects
of His Majesty who have , . . phuted themselves within
this commonwealth.' Carleton, governor of the newly formed
province of New Brunswick, lepUed that Great Britain con-
sidered that the Sdioodic was the boundary.

As matters had reached an impasse. Congress in 178s
resolved that the United States minister at London be
instructed to propose a setttement by negotiation, and. failing
this, to propose a reference to a commission. Nothing was
accomplished, however, and in 1790 the Senate advised
that measures be taken to settie the dispute, and that ' it
would be proper to cause a representation of the case to be
made to the court of Great Britain, and, if said disputes
can not be otiierwise amicably adjusted, to propose that
commissioners be appointed to hear and finaUy decide those
disputes. ^^

""vJf"^"*"'' ""^^ '^ "KATIES

Jth the SwS 2d^1 S'thelSS?!?^ 7^
the Mid two commh^nnl^ k M Senate thereof, jjd
of • thW ror.TSSTSSL^ •««• on the chSe
propoM one pmoS?^f^.*l!f^' they iheJI ewh

•'»2irtera^SSKrJ„H^*i.?f 'V^ CommiMfanen
what S^er iTS^&s^C.SflJjlSfJS^'*^
The Mid declwmtiSSTSSi«**^!i^^«*««ty.
••id River, endXjlnlSSS * dMcription of the
»ongude ohu m«SSr«ff3?t?£?«?' latitude .„d
I*rtfe« «g«e to conSer«i2 il!S!f*' \c' '.^d both
cludve, to ae tlutArime 1S«°" "• ^' ""d con-
celled into queetioa a? iSS! Jfc ?r*«" herMfter be

»»»««>ner. He dediiMrfTT " .^'"*** ^tatee com.

I««lnent iTA.^ of^nS. TT'^ "^ ^^ HoweU, a

meeting in Boston mMv!^ *u ^" *^ *»» infonnal

«>«^onerS,Sf^^* *PP°^t?»*°t of the thirf
B«°«>n of New YbA "^ the appointment of Egbert

half-blood. s^th^rJkZ'un Sst'i ^^^^-^ ^

•nother.' No choice. hJ^T^ ^•j^'^^^'f *>' ^«*iy'-
that each dde dioJlH^e 'TnTfl'^'^i* ''*• "'^
characters ' from the UstoTLn^T '* "** w-pectable
•trike the name, of twS 1a^. S* '^^^ P»^ «»J«>uld
"ne. ot two, and that the two remaining names

FROM FUNDY TO JUAN DE PUCA 759

AoM bt put into a boK and that OM ■bould b« drawn out

Waid adpman. •oUdtor^general d N«w Bnintwfck, and
^^H^"**^ •ttom.y.tweral of MtaMchuietts, wen
appdntKl ag»t. on behalf of Great Britain and thrUnited
Statea rMpectivdy. Both agents applied Uiemiielvee to tlie
pwpMation of their feq)ective cam. Chipman had the
••Jbta^ 0( Phineaa Bond. Britiah coomiI at Phibdelphia.
Judge Pa»u, of New Bnin«Hclc and other*. MooTiJ?^
Among the " and othen " there aeema to have been a perJon
r?SJ?!.*?^.*** V^ ^ ^'*^ minirterand Britidi ooiuul
•t Philadelphia, in the early itagea of the buiinew, with copie.
of paper* on which the United Statea relied, and probably
with a copy of its daim.' pnwaoiy

On August ai, 1796, Barclay and HoweU met at Halifax.
i?*^f!??.' commissions, it was found that, while Howell's
autiwnaed him • with the other commissioners duly sworn to
fiT*?!.*** . f *^* *^ questions and exactly perform all
STd filST-S"!!?,"!** '"** 'l*'*'^ to be done to cany the
S^BWwJ^ *^*? ~™P'^1 execution.' the commission to
the British commissioner read : ' We wUI give and cause to
be given full force and effect to such final decision in the
premises as by our said Commissioner together with the other
^o comnussionw. above mentioned, or tkt major part of the

Barclay requested Howell to iufonn his government of

to twSS'.*?'i^ commi«ion might be altered to conform
to tbat of the Bntish commissioner.

J?^o?'s?'*,s%i°r?^nrjur^^^^

^^oftiie United sJi^l^X^ldSS'S;
Secretory of Stote that the concurrence of aU three
comnu«<mers was necessary^ to a dedsioa. declined^
aroede to thtt request, declaring that it was not only Ws
sZS^S ^ ""V*' r!ry ««« « ofik* in the united
?fc^!?^ . 'I*^"* ^« *^ convened on the subiert
S tl! i!?*"*'?" ""***•■ *^* ^'^^^J' ^d seals of a majoS
of the commissioners would be final and conclusive.

• Moon's InUrnational ArbUtrntions, i. p. o.
TOt. vni

76o

t »

BOUNDARY DISPUTES AND TREATIES

a* the government of thelSd sZ^T^ T!'**' ^
that a dedaion of a maAnriti^J^ '*"" * ^declaration
be accepted^ vaSd Th^J- ?' "T^one., would
unde«tiiding the t«int^t ST'7'J^^'' ^*°'»' ""^^
that the Unifed SbSTwouM^" ' !^ ^^ * <»«:«a«tion
misaionem '^M fo^'JS^^T ^^^edsion of the com-
Colonel Pickerinjj waThurt ^' *i. • ««*tary of state,

United States wouIdTotillS'^ *^' *^«

himself with a «n«.rai !I!!P .• ' ^r '^*°" contented
would give die Si tfTT >? *« ^^-^dent
and effect.' » °' **** Commissionem fuU force

On August 26 Barclay and Howell aft^r o ^^
of the point at issue witi, ♦!«/-"? i* . . "^ * discussion
the ap^intmentTtS aST^"*?' ^"'^^^ *^**' P^^^ing
perfom an"offidal act BvTT'T""'"' ^^^^ """^ no?
to hasten the Sn«Sf th?/-?"!!? fS^^^nt, in orfer

with the re^u^^^is^'k^T^j'::^': *? P"-«»

veys made of PassamaqVoddy ^y^aid ^<S,^^ *"■

in hazanl. a game I L „n ^J'°°'^ <>« as a certainty

authorized to Sty' ThS^ «nL ♦!r' *=°°*=*'^«* "y^^'^
approved by SuHivi, «PP<»°tment was also warmly

• Rives'. Conesp<m4ti,ct of Thoma, Barclay.

FROM FUNDY TO JUAN DE FUCA 761

In July 1797 they met at Boston. President John Adams,
one of the surviving American plenipotentiaries, deposed
that Mitchell's map was the only one used in negotiating
the treaty of 1783 ; that lines designating the boundaries
of the United States were marked upon this map ; that the
Britidi negotiators first claimed the Piscataqua ; that the
Americans claimed the St John, but, later, compromised on
the boundary of Massachusetts Bay — the St Croix.

John Jay, another n^otiator for the United States,
deposed that

it became a question M^ich of the rivers in those parts
was the true River St Croix, it being said that several of
them had that name ; that they did finally agree, that the
River St Croix laid down in Mitchell's Map, was the
River St Croix which ought to form a part of the said
boundary line. ... It seems to him that certain lines
were marked on the copy of Mitchell's Map, which was
before them at Paris, but whether the Map mentioned
m the Interrogatory as now produced, is that copy,
or whether the lines said to appear in it are the same
lines, he cannot without inspecting and examining it,
undertake to judge.^

In a letter written to Jefferson by Franklin, April 8, 1790
— nine days before his death — he also stated that they
used Mitchell's map only, during the negotiations.

The foregoing was conclusive. The only question to
be settled was : Which stream was the St Croix of Mitchell's
map?

Passamaquoddy Indians swore that de Monts wintered
in the Schoodic, but that he had erected a cross at the mouth
of the Magaguadavic, and that the latter was the St Croix.
As already stated, while Indian evidence respecting occur-
rences is sometimes trustworthy, their evidence respecting
names given by white men is not to be relied on.

The agent of the United States presented a copy of
Mitchell's map found in the office of the secretary of state.
It was said to be the copy used by the United States
negotiators at Paris, and contained a boundary marked

» Moore's tnUfnational Arbitrations, i. p. ai.

7<i» BOUNDARY DISPUTES AND TREATIES

«n2"JSSSr-5 na S^-^ S^"-- ^* R^-
tory article ' wherein, ,kl™-- "™'°". " eipUiM.

«»u» of «„ sTc^r^, XJS'^r*' '°"*"^ -^ *•

«fT^' J . . «>™n"««onetB entered upon the cons Zf

inteSs^:rjTeg?rtorof%.V'^'*T*-- <^^^

the identity of the^^r S r ^^^ T?*^ °' P»^« •' (^)
Nova ScoS : (4) theTulfi^LnT*"/ §^ '^'^ boundaries of
treaty ^*' fulfihnent of the conditions of the

evid'en«oJSsa*ndJa^^?^^^"^*''»*°"' ^^e
mai^ ana tftat it was only necessary to identify it • also that

too. that in that ^ ttiK^^!VT \J T™>^
tones.' °™^' *^'P"^ concerning those terri-

comid^"S:S'li^' SSfYrl ^^^*^™«= -•»- the

FROM FUNDY TO JUAN DE FUCA 763

cloaed the remains of de Monts' settlements. Comparison
of this map with the maps made by their surveyors com-
pkted the identification with the lie Ste Croix of Champlain,
and proved decisive with the commissioners.

3. When it was decided that the Schoodic was the St Croix
of Champlain and of the treaty, it remained to determine
its identity from the mouth to its source. A short distance
from its mouth this river divides into two branches. The
eastern, and longer, rises about fifty miles north-north-west
of the confluence, and flows through a series of lakes, known
collectively as the Chiputneticook Lakes. The western branch
rises about thirty-five miles west of the confluence and flows
through Grand and Big Lakes. The British agent claimed
that the western branch was the true St Crouc, and that
its source as to be found in its most distant spring, measur-
ing from the mouth. He based his contention on the grant
of Nova Scotia made by James i to Sir William Alexander
in 162 1. In this grant, the boundary follows a straight line
from St Mary Bay to the mouth of Passamaquoddy Bay,
thence, 'adfluvium vulgo nomine Sanctae Crucis appeUatum
et ad scaturiginem remoUssimam sive fontem ex occidentali
parte ejusdem qui se primum praediOo fltano immiscet,' or, in
English, ' to the river generally known by the name of St
Croix, and to the remotest springs, or source, from the
western side of the same, which empty into the first
mentioned river.* » The British agent contended that this
clause meant the most western spring draining into the St
Croix. The United States agent contended that it mear ,
the • remotest springs * draining into the east branch on its
western side. To a geographer, the American contention
was special pleading, and without foundation. So far as the
boundaries of Nova Scotia as defined in Alexander's grant
were concerned, the British contention was unassailable.
Prior to 1763, the commissions to the governors of Nova
Scotia defined their jurisdiction as including ' our province
of Nova Scotia or Acadie in America.' In the commission
to Montagu Wilmot, 1763, two variations were introduced.

« suiter's translation, qnotad by Bouiioot in Transactioiu of Soyal Soeiitv of
Canada, 1899, U. p. loj. ^ r j

7«4 BOUNDARY DISPUTES AND TREATIES

thence to Se «,JSSi1^..„J ^ **"*" **"« North from
The fi„t v^rtS>n 7m,^*^7 i°" «'°"y ^^ Quebec.'
branch. In theTv>TS^.*^ ^u^*^"** ^ ^^ ^^*^
of the St CrSc rSl**„^f ; *\^^; [«»» the 8oun»

was alter«l to rSd ' due^rJh' '™'? °^ "^^ ^\ ^^^^
the Alexander li^^ w4f,^o^ ^JfJ'^ "°7 kn<»w that
now the county of Su^n -^^^^ ' *°.* P**'"* ^ ''^'^t «
is evident S S^e^St^ ^S^r""*.' • ^^*"de45' 55'. it

thelawK>fficerBoHntf?e^oL^*OffiriTJV'^' ^'^^^ °'
the northern half of ie ~ ^^"^ '° ^'^^^ «"^'n

w.^M

the ChipScTl^was^^ria ™ s'^ ^T "
Croix. But while Barolay hdTthiT^' '* ""*" i^'' ^^
spring was the source. B^^ pu/fomaid^'e eTln" *^'
contention that the word ' J»»L'\lt ? extraordinary
which it issued fr^th^fr^ !?? J^^''"^ to the point at

of lakes is ^a^STer^'i'lt^'aJS S h" ""t* ' ^ ^'^^^
this curious dictum to^r«.Z^i. i^'^"**PP"ed

• the source of a nVer is wheS Jr^^'^''''./.'«^8 t^^^t

a different denonJn^tioJ ^^n^f^'^^^ V^^" °'

likely to receive general aa^taSr ^'""'' '"*^ ^^'^ °°^

fmm the source of the eastern branch 'will Tot Lte,^

FROM FUNDY TO JUAN DE FUCA 765

the highlands here described, but will intersect the River
Restigouche, which empties itself into the Bay of Chaleura,
whidi falls into the Gulf of St Lawrence, and will also inter-
sect the Metabediac Lake, which is the head or souree of
the river likewise falling into the Bay of Chaleurs ... the
source of this branch of the Scoudiac or St Croix cannot be
the source intended by the treaty of peace, because in such
case we cannot arrive at the north-west angle of Nova
Scotia.' ^ He pointed out that, if the highlands were souih
of the Restigouche, they would divide the waters that fall
into the Gulf of St Lawrence from those that fall into the
Atlantic ; if north of the Restigouche, they would divide
the waters of the River St Lawrence and those of the Gulf
of St Lawrence; whereas a line from the source of the
western branch of the St Croix would fulfil the conditions
of the treaty 'except in that of the River St John, wherein
it becomes impossible, by reason that the sources of this river
are to the westward, not only of the western boundary-line of
Nova Scotia, but of the sources of the Penobscot and even
of the Kennebec, so that this north line must of necessity
cross the St John.' The American agent replied that, as
neither the north-west angle of Nova Scotia nor the high-
lands had been determined, there was no basis for argu-
ment. It is of interest to note that, later. Great Britain
and the United States reversed their respective alignments.

Finally, Barclay conceded to Benson in fixing the source in
the western branch at the outlet of Genesagenagumsis or Lesser
Big Lake, and a declaration to that efifect was drawn up, but
Howell refused to sign. At this juncture Liston intervened.
After conferences with Barclay, Chipman and Sullivan, it
was agreed to accept the remotest spring of the eastern branch
as the source of the St Crouc. As compared with the line
from Lesser Big Lake, this gave the United States an area
of about one hundred and forty square miles lying to the
north and west of the confluence ; but, north of Chiputneti-
cook Lake, Great Britain gained a strip eleven miles wide,
and the boundary, instead of intersecting the St John four
miles west of Grand Falls, as at present, would have inter-

« Amtrican Stat* Pmp*n, Fortign Relations, vi. p. 919.

(t«i

i. !

BOUNDARY DISPUTES AND TREATIES

766

•Je main .tram did „« i^-my^^^S^„ ^^ "^^
.the Frend., whid, .„ . S,tag 3, b»?LT° *'™° ^
identiScation of the II. <;^ rl? . ..1' *" "*• "«

mouth i^P^^nSilt^VT'' *° ^^'i "^"^^ '~" ^^
otBaX™^S5a£HHl?^^

directed his name to be iniSTS tL ?!^*° '?'"*=**"*'y
he eventually signed ' » Declaration, which

eastern and wStembI* J ^°?'*L *° "^^ J""'=*''°» <>' the

sJ'c^S^a'sSd'Tr^L'^^P^ "-"« 5' the River
part of the boundfry thSd^^f^^' *?** '?™"« «
the mouu, of thetj te i'nT^ iqiX«£ -J^

.' i

FROM FUNDY TO JUAN DE FUCA 767

a point of land called Joe's Point . . . and the coune of
the said river up from its said mouth, is nordierly to a
pcnnt of land called the Devil's Head, then turning the
said pdnt, is westerly to where it divides into two streams,
the one coming from the westward, and the other coming
from the northward, having the Indian name of Chiput«
naticook . . . then up the said stream, so coming from
the northward, to its source.*

The day the declaration was signed, Sullivan wrote
Timothy Pickering, secretary of state, that he had ' filed a
memorial urging the Commissioners to fix the mouth between
Deer and Moose Islands or between Deer Island and Letite
Point in the Bay of Fundy, but they declined it under an idea
that unless Passamaquoddy was a section of the Bay of r undy
the St Croix had no mouth in that Bay.' ' He further stated,
and as the sequel shows, correctly, that ' If the bay of Passa-
maquoddy is not considered as sea a negodation may be
yet necessary.'

The work of the St Croix Commission did not decide the
ownership of the islands in the St Croix River, nor did it
define the boimdaiy through its lake-expansions — the Chiput-
neticook Lakes. On April 1 1, 1908, a treaty was signed at
Washington providing for the demarcation of this portion of
the boundary. Article II provided for the appointment by
each nation of a commissioner, the commissioners so appointed
to lay down upon accurate nK)dem charts, ' the line of boun-
dary along the middle of the River St Croix from its mouth
to its source,' the line of boundary to be a water line through-
out and to follow the centre of the main channel or thalweg,
except where it would conflict with the recognized national
status of an island ; that, failing agreement within six months,
each party should submit its case to an arbitrator, whose
decision should be final. It further provided for the establish-
ment of boundary monuments, ranges and buoys.

Up to March 1913 the St Croix had been surveyed, under
the provisions of this treaty, from the source to the mouth ;
the boundary had been determined, except at one point where

> American Statt Papers, Foreign Relations, vi. p. 921.
■ MSS., Department of State, quoted in Moon'i Treaties andArbitrations.i. p. 33.
VOL. VIII tl

'»'

BOUNDARY DISPUTES AND TREATIES

768

PaSSAMAQCODDY ISLAIIDS

<^lying fi^ li^L^* k1**5" °' **»« United Stat^

Scotia on the one Mit^d £^f m"*?. **'*«*» Nova
■haU tespecUv^ tow* A.^. '^Tl* **? *« other,
Atlantic Oc«^7^Sine.»2h^?' f""**^ *"«> *«
or heretofore haWS^thS. thI'^''-J"*"?^ *«•
province of NovaScoS?' * ^-^^^ °' **»« «id

«U1 Sl^t"^iTie"rr 13* ^ ?* "-*«* State.

bytheeartem::S"lit;f'Se'^^S'suSr"°^^

and aouth by a line drawn r««ii?i^ •^' *°** °" **»« «Mt

twenty leaje. ^^^::^^l£^^'^!' ««^t
any. appertaining to Nova S«»S Q u u*^" *"»• ^
obviously, be bounded at Sch ex^'ml!;*? I ^'* '^°"'^'
nlf*/ angles to ihe baundarL^m^^^X-^ ^f*. '^^'^ <«
fulfilled by a due^mS fi«; J? ^ condition is only

and a d Jsouth"SnX^":H'rsTcti,'"°"*' '' "^^ "' ^^'^

nup';cct"brntri-i'^^^^

Oswald.' On this^p^e line r^ ^ ****^'^ ^^^ ^r
Atlantic coast and a^m^ii? i! ^''^'T' ^"^^""^ ^ the
tiU it reaches Tt^^^'^'t^ ^^ '^V'^'"^'
extrem ty of Nova SrotJa o«^ JT '**8^f /«>«» the western

* /«0^ri, p. 8^3.

ISLANDS IN THE BAY OF FUNDY

—===3

iftr

■Maiiry ulilail ky UtttM lUtat.

' ■•utery MisM kjr OnatHMMn

■Kw ArtM* IT. or tto TNaty tf

fnpand V ^amM Wtoe. F. R.6.S., ttrpmify for "Canada and Us Pfoyuuxt."

1^
111

f'h

FROM FUNDY TO JUAN DE FUCA 769

IwBctte that it formed pvt of Nova Scotia. The foregoing
amounts, almoet, to a demomtration of tlie correctneia of
tim tiieory that ' due cast ' is a alip of the pen for ' due
soudi.' * Any other theory attributes striking incapacity to
die astute negotiators of 178a. The King George in map
would have been conclusive evidence had it been produced,
but it was not produced, either because it had been forgotten,
or because it would have been detrimental to, if not destructive
of, the British claim respecting the * Highlands.'

The original error occurs in the statement of boundaries
claimed by the Congress of the Confederated Sutes, August
19. I779f but was nc: known till the Secret Journals of
Congress were published in 1831. The lapsus calami is
probably due to the draughtsman having in his mind the fact
that the Atlantic coast cf North America has a general
north-and«south trend. Any question respecting the owner*
ship of these islands, however, was covered by the exception
of islands that were, or had been, within the limits of Nova
Scotia.

Disputes soon arose respecting the ownership of Moose,
Dudley and other islands which were claimed by the British
and by United States authorities. The British claim was
based on the grant to Sir William Alexander in 1621, and
was strengthened by the fact that the authorities of Nova
^ )tia had exerdaed jurisdiction over all the larger islands,
le British authorities had granted Moose Island, in 1764,
to Governor Bernard and others, and made grants of Deer
and Campobelk) Islands in 1767. Grand Manan Island had
been reserved pending the issuance of a grant to Sir William
Campbell, and Nova Scotia courts established at St Andrews
and CampobeUo had exercised unprotested jurisdiction over
Moose and other islands. On the other hand, Massachusetts
had not, prior to the treaty of peace, made any effort to
exercise jurisdiction in this region.

In 1784 Ma-^sachusetts surveyed Moose, Dudley and

• Mooce (Tntiu tmi ArbtiraUons, i. p. 43) iayi : ■ Tlie Mgotwton of tb*
treaty of paaca Mem to have conaidered Faiaatnaqnoddr Bay either ineraly aa a
part of the Bay of Fnndy, or ebe aa the month of the St Croix Rivw.' GanooK
IBoimdanti 0/ Ntm Brwiswick, p. 379) alao aooepta Moore's thmry, altbongh a
doe east line would cot off part of the mainland of what ia aow New Brauwick

1 1

m BOUNDARY DISPUTES AND TREATIES

aa. «7«5, John I.v i«^^!«T^ ? *'*^ "^ On September

S-S^Tbo^ r^Ig:??; !L?iy"

«^nirter at London, be lMt«w!L !?^ ^"'' ^"**«' Stetee
Nothing WM^^'pJi3?^JPf "^IPt ' r^'-^t.

^r to Ck«remor CrieCl^^^rbiT^SS' t?' ^ '

The Agent of the United &Jt^^A ^ '^' ^ "•V" •'

during the diwiMion 3^^^^ °o* -f" *» be .w.«

of the river, and therefom AutZ^t **•**""« ^ niouth

•ppamnti; di2oWthe^ffit^/T*' ^**'' S"I«van
««tod that tlwtoSS 5 d2»!.^ *^* **'^°"' •"<» P"*-

<*« mouth AouldS in 21 Sj 5 F^L??' ^'/r^yj that
cdved it should be bet««Z it^l b ."^^^ 5 «nd that he con-
b«ween Deer wrM^J^** ^« ^ P^' I1«h1 or
ever, adopted ChipwJ coSS;J*.! commia.ione«, how-

dh^Tged iith the^^SiTtS^^'s?? T«%.-i«P»y
the treaty of peace Thuuu^u . ^"« ^ver of

whe« it^ bS^;«^ ^\ 2: S:f«.of the idand.
deariy defined. ^ ** **"»* ** «««« wa. more

•ion of tlie dumuh bl^t- .ijl Jf^*^ » "■vig..

waouuiy a convention commonly

to«« to th. Unit*l Sff Mtil*t;r^il ",1^ r»? • ««P««—tfc wpZn!
l»vlmt Lomloii. h. WM ,«»« to M<Lt«H »l^' ""^ *^ Adwn. wj^out

>fi«i.t«' (FortT. A C^nt^TSL^^S^pM!^ «— . to ««, .

FROM FUNDY TO JUAN DE FUCA ni

koown M tiM Kiag-HawkMbury Cooventioa. By the fint
Mtide it WM provided that :

The Line hereiiiafter dcKribad ■hall and hereby ie
dcdarad to be the Boundary between the mouth of the
River Saint Croix and the Bay of Fundy ; that is to
my, a Line b»inning in the middle of the channel of the
River Saint Croix, at its mouth (as the same has been
ascertained by the Commissioners appointed for that
purpose) ; thence throui^ the middle of the channel
between Deer Island, on the East and North, and Moose
Islaml and Campo Bello Island, on the West and South,
and round the eastern point of Campo Bello Island, to the
Bav of Ftmdy. And the Islands and Waters Northward
and Eastward of the sakl Boundary, togedier with the
Island of Campo Bello, situated to the Southward thereof,
are hereby decbred to be within the Jurisdiction and part
of His Majesty's Province of New Brunswick ; and the
Islands and Waters Southward and Westward of the
said Boundary, except only the Island of Campo Bdio,
are hereby declared to be within the Jurisdiction and part
of Massachusetts.

The United States Senate amended the treaty by striking
out the fifth article respecting the boundary between Lake
of the Woods and the Mississippi. As Great Britain refused
to accept the amendment, it was never ratified, though the
|»vqxMed division of the islands was the same as in the final
settlement. A nmilar agreement, proposed by Lonls
Holland and Auckland, and Messrs Monroe and FIcLney,
in 1807, failed on account of differences respecting con-
current negotiations.

On December 24, 1814, Lord Gambier, Henry Goulbum
and V^Uiam Adams, on behalf of Great Britain, and John
Q. Adams, James A. Bayard, Henry Clay, Jonathan Russell
and Albert Gallatin, on behalf of the United States, signed
at Ghent the treaty that doaed the War of 1812-14. Though
it was negotiated on the basis of the status quo ante bdlum.
Great Britain refused to consider the Passamaquoddy islands
as territory ' taken by either Party from the other during
the War.' The treaty provided that ' Such of the islands in
the Bay of Passamaquoddy as are claimed by both Parties.

•'i

\%\

BOUNDARY DISPUTES AND TREATIES

rf»all remain in the possession of th» P-^. • l
sion they may be at^hetime of th! ?^ "* *J*°* P°"««-
cations of this ^r^t^lnS\^lf' ^***"«* °' ^« Ra^fi-
to the said I^landTi" W 4lZd!: ^'^""^ ^* ^^''^
the ivth Article of this T^ ' T„ * « "'"'^"""ty with
decision of the commS^n^S^ted "ndrAJ?";^'"^ *«
treatyconfinned Great Britain S?^ "pder Article iv, the
which she had seizJTduriTAe wr*^°° ""^ ^°*^ ''^^•

- V^^-XtaV^Lli^tht^^^^^^ ^^^
be referred to commis8^onr« ^.C ^^^^e^nce* should

Britain and oT^CT^^^t^^ ^ ^ *P?*''"*^ ^ G«»t
sionera should imSaSilv Iv ^^^^^ L *** ^^^^ com^is-
claims accorfSigTs?^ LS"' "">? ^IT?^ "P°" *«
them on the part of H?s BriSnnrM • ''»°"'d> laid before
States, respecd'^fv th.^^K ^""^^^ *"** °' *« United

belonged, in SSK'^h I.T^'^'. '«'-"ds respectively
of peace of 1783 ™7t !f tf,. ^^ '"*^"' °^ ^« *^ty
in their dedsion\,S * l!?\ ™™'^°"^" '*°"W agr^
as final and Sndtvef S Ifll r"'^*- ?"^ ^«^°"
diflFer upon any of thlmaJf f commissioners should

or eithe^X^. or d^aTe o^^J.f"^'** ^^™' °' »«*
they should make. jSV«^S°™' '° ^^^^ ^ «"^'
to both governments. stetiLTe^Stf ;j'5?i °'- "P^*^-
the grounds upon whiS A.».V r^ ?• difference and
based; that thVwrt or ^^r. ^'?7^°P^°°« ^^^^
to some friendly s^^^gS^r^'S td^?^ 'l.'*''^"«»
ences ; and that the dedsioi oTSch fSf °° '^^ .*^"'-
state should be final and conduce ^^^"^ '*^^'^«" °'-

Rrfiii *^'' *^"*=^<^' Thomas Barclay who h«H 1^
Bntish commissioner on the St cSt r • • ****"
appointed as commissioner for gL b^^^T^??'. ""^
a prominent dtizen of MaJsad^SttfT •^°^" "°'°«*'
missioner for the \3niXS^Xt:Jrw''^^^'^ «"»•
filled a similar positon on JS of ?,"* .C^JiP"*"; who had
appointed agent for Gr^t Bri^in andT ^"""^r. was
name, was joint agent. Janfi? A. .^ ''" *'"' °' ^« «a™e

ofMa3sadiusetts.\ia/SeJatlrCSSar

FROM FUNDY TO JUAN DE FUCA 773

Lord Castlereagh's instructions to Barclay indicated
that the British right was based on the treaty of 1783, which
expressly excepted ' such Islands* as now are or heretofore
have been widiin the Limits rf Nova Scotia ' ; that Nova
Scotia had exercised juri^ti-ction up to 1783 ; that the
Alexander grant was cor ijsivc, inaainif(i as it included
all islands within six leagjss cf any part of the circumfer-
ence, and that, during thv; p.cceedings ' efore the St Croix
Commission, the American agvnt !<;id objected that fixing
the mouth of the river at Joe Point had conferred upon
Great Britain title to the disputed islands. Barclay, in
his reply, stated that the British case was incontrovertible
except with regard to Grand Manan, the most imporUnt
of all.

At the first meeting of the commissioners, held at St
Andrews, N.B., on September 23, 18 16, the United States
commissioner objected to the commission presented by
Ward Chipman, Sr., because it was a letter from Lord
Bathurst, secretary for War and for the Colonies, convey-
' the commands of ' the Prince Regent that he ' act as agent
to the Commission.' After discussion, it was agreed that
Chipman should act as agent, pending the issue of a formal
commission. The commission to him and to his son, empower-
ing them to act jointly or severally, was issued on January 24,
1817.

The agent for Great Britain claimed Grand Manan and
all the islands in Passamaquoddy Bay on the ground that
they were ' within the Limits of Nova Scotia.' The United
States agent claimed them as being ' within twenty leagues '
of the shores of the United States and included between the
due east lines from the St Crouc and St Mary Rivers and as
being without the limits of Nova Scotia. After agreeing
to accept as authoritative the maps and plans of the St
Croix and Passamaquoddy Bay, compiled for the St Croix
Commission, they adjourned.

In June 1817 the agents presented their memorials and
ailments. On September 25 following the commissioners
met in Boston to hear the replies of the agents, the hearing
being concluded on October i . Both agents requested a further

-*.l

il.:;i

774 BOUNDARY DISPUTES AND TREATIES

SS;!;;*' i^**rl"^^ ^ adjournment till the foUowine
^nng On October 8. after considerable discusdoTSe
commissioners announced that the ajrenta Lh M^^ k

l.l.!5^' ^o""'" '*^™<' <^™^ M"™" Island and all th.

oi no™ Scotia. The giant of Nova Scotia to Sir Willi.™
Afcxand„, ,6,,, tnmdated fcom tlie Utin?riS.5",^^

no«h or cashes ^^/^^SZt ™''
This grant indubifcibly included all thi. f«r«-««-. i •
S.tS TL'^L-it rr *>^- Ba^
M^. .ea.vtagl.?oS3J^I^^ta'nn?5^1

mmsmm

^^; MSS.. Dn*rtn.«t of SUte, quoted in Moor,-, r^o,^, ,^ ^^^,,,,^
» Bay of Fundy.

FROM FUNDY TO JUAN DE FUCA 775

islands in the Bay of Fundy and outside it belonged to the
United States, provided they were within twenty leagues
of the shores of the United States, A second question also
arose : Did the Alexander grant fix the limits of Nova Scotia,
or had they been a£Fected by the commissions to governors
of the province between 1763 and 1783 ? The commission
to Montagu Wibnot, 1763, defines his jurisdiction as bounded
on the westward ' by a Line drawn from Cape Sable acitMs
the entrance of the Bay of Fundy to the mouth of the River
St Crouc,' etc. The commissions to Lord William Campbell,
August II, 1765, and to Fraads Legge, July 22, 1773, use
the same phraseology. In all three commissions, the
eastern boundary includes ' the said Bay [ChaleurJ and the
Gulf of St Lawrence, to the cape or promontory called Cape
Breton, in the island of the same name, including that Island,
the Island of St John, and all other Islands within six leagues
of the coast,' etc.,^ but no mention is made of islands lying
to the westward of the line from St Mary Bay to the St Croix.
In the discussions that took place between October 2 and
9, the United States commissioner, at first, contended that
there could be no question respecting the meaning of the
Alexander grant, so far as it affected the islands ; that ' the
Crown had decided it repeatedly in the Commissions to
the Governors of Nova Scotia, wherein the Limits of Nova
Scotia were defined. He referred to the Commission to
Montagu Wihnot Esqr., in 1763, wherein all Islands on the
North and East within six leagues of the Coasts, are declared
to be within the Limits of Nova Scotia, and to the South-
ward, all Islands within forty Leagues, of the Coast, but that
to tiie Westward no mention was made of Islands.' The
British commissioner argued that the commissions were
usually • penned in haste, by Clerks in the pubUc offices,
and intended merely as instructions to Governors, not as
acts which were to bind His Majesty on other points and
the foreign powers ; because, if Declarations contained in
such Commissions could not bind foreign Powers, it was
unreasonable that the Power making such Declarations
and possibly with private views confined to its own Subjects

> Atmricmt Stait Pmptn, Fortign RthUions, vl. p. 917.
VOU VIII ^

'"1!

776 BOUNDARY DISPUTES AND TREATIES

Jould be bound thereby,' etc. After further discusston,
Barclay asked Howell to unite in a decision that all the
islands belonged to Great Britain. HoweU refused on the
ground that Moose, Frederick and Dudley Islands had been
awarded to the United States by the convention of 1803
and by the treaty of 1807 ; that, though neither treaty had
been ratified, on both occasions Great Britain had been
willing to relinquish her claims to them in return for an
acknowledgment of her title to the other islands in Passa-
maquoddy Bay ; that, if this division was not satisfactory to
Barclay, they would have to report their differences to their
respective gove-nments for reference to some friendly sove-
reign or state for decision, as provided by the Treaty of
Ghent— which decision, he aigued, could not possibly be
more adverse to the claims of the United States, and might
be more favourable than that proposed by Barclay.

Barclay communicated to Chipman the substance of
this discMsston. They were agreed that a friendly sovereign
would probably adopt the Une fixed upon-though not
ratified-m 1803 and in 1807 ; that this would leave the
ownership of Grand Manan for a separate decision, and that
this island, which was more valuable than all the Passama-
quoddy islands combined, might be lost to Great Britain •
or the friendly power might decide that ' the smaU portion
of it belonged to His Majesty, and the remainder to those
Statw. On October 6 Barclay informed Howell that he
wouJd agree to yield Moose, Dudley and Frederick Islands
to the United States, on condition that the other islands in
Passamaquoddy Bay and Grand Manan be awarded to
Great Bntain. Howell was astonished at a serious claim
to Grand Manan being put forward by Great Britain, but
eventually offered to give up Grand Manan in return for
CampobeUa Barclay informed him that he had his ulti-
matum. It was not until the morning of the 9th that he could
mduce Howell to agree to these terms, 'and then with great
reluctance and apparent Hesitation, and only on condition
that I would unite with him in a Letter to both Governments
repressive of our opinion that the Eastern Passage from the
Bay of Passamaquoddy was common to both nations.'

isfi.*^

FROM FUNDY TO JUAN DE FUCA

777

Howell's 'reluctance' and 'hesitation' are understand-
able. There is no doubt that a reference to a friendly
sovereign, as provided by the treaty, would have resulted in
a settlement as favourable to the United States, and, probably,
more favourable. Moose Island was the only island of
importance awarded to the United States. As the channel
between it and the mainland is unnavigable, it properly
belongs to the State of Maine. Frederick and Dudley Islands
are very small islands, dependent upon Moose. In addition.
Moose Island had been granted to citizens of the United
States.

As President Monroe in his first annual message, December
3, 1817, only expressed ' satisfaction ' with the division of the
idands in Passamaquoddy Bay, and omitted all reference to
Grand Manan, Barday surmised that the president ' felt sore
on the point.'

The commissioners reached an agreement on October 9,
1817, and on November 24 executed the award. They
decided that

We . . . have decided, and do decide, that Moose
Island, Dudley Island and Frederick Island, in the Bay
of Passamaquoddy, which is part of the Bay of Fundy,
do, and eadi of them does, belong to the United States
of America ; and we have also decided, and do decide,
that all the other islands, and each and every one of
them, in the said Bay of Passamaquoddy, vAiiai is part
of the Bay of Fundy, and the island of Grand Menan,
in the said Bay of Fundy, do belong to his said Britannic
Majesty.*

This decision settled the title to the islands, but did not
delimit the boundary-line through the water channels As a
result, there were numerous disputes respecting the national
title to certain fishing-grounds, and these disputes frequently
became violent. The lack of definition was also taken
advantage of by smugglers and other law-breakers. On
July 32, 1892, a convention respecting the boundaries between

> TnatUt and OutMntiont b«twnn tt* Vnittd Stttt* and otk4r Pomtri, 1776-
1887, p. 406.

778 BOUNDARY DISPUTES AND TREATIES
Canada and the United States was signed at Washington.
By Article ii .t was agreed that the contracting parS^U

^^VZ°S°'^"^°^^ o"* to be named by each
parly, to determine upon a method of more accurate^
marW the boundary line between the tSo SuSri«
In the waters of Passamaquoddy Bav in front nfin^
adjacent to Eastport. in the^sSte^of%ne. Sto oSS
buoys or fix such other boundary marks as Aev mS
determine to be necessary. ^ ""^

on Slf ^i J?""* n ^^^ ''*" appointed commissioner
«? IS T -i? c*' ®"^i' *"** '^- ^- MendenhaU on behalf
of tiie Umted Sates. They met at Washington in MaiS
1893. A basis of agreement was decided on, viz. : that
so far as possible, the line should be drawn so as to give
^ nation equal water areas ; that the boundary should
ODflsist of a senes of straight lines, the angles bein^mark^
o?H„« T if ,!!?* T'^! °" ^^ •*°'*«' *°d that the number
a^^"?.?rv'jf'^"u"**°*^*'™^'°»«- It was further
SI Q* ,?**' 'X «»»°«j<*> marked from Joe Point-fixed by

t?w I^"?* J!l""iff "I ^ ^^ "°"* °f th« St Croix River
-to West Quoddy Head, opposite the southern entrance to
Ae diannel between Campobello Island and the mainland.
Based on these pnnaples, the major portion of the line was
b^^own on charts, and, later, marked by buoys and shore

Djfferenoesarose.however.respectingasmall island-Mark
Idand or 'Popes Folly Island.' The commissioners wer«S«
unable to agree respecting the ownership of Cochran Ledge,
opposite Eastport. Another difficulty arose respecting certS.
fishmg-grounds south of Lubec Narrows, ^e ^finerican
comm^sioner agreed that the line should be drawn along the
dredged channel which passes to the westward of the natural

^'i't W*^^^"''^^ ^r^ ^^^""^"^ ^^"'^"^-^ "troS
protests to Washmgton, and the matter remained unsettled

On April II, 1908, a treaty respecting the demarcation of the

boundary between Canada and the United States was signed

at Washmgton By Article i the contracting parties aneed

that each should appoint an expert geographer or surveyor

to serve as a commissioner to define and mark the international

FROM FUNDY TO JUAN DE FUCA 779

txNUidary-Une through Pawamaquoddy Bay. It ocmfirmed
the marking of the line so far as it had been carried by the
commission of 1893. The cases were exchanged on December
3, 1908 ; the counter<ase for the arbitration proceedings
was prepared but was not presented to the United States
government.

In May 1909 Wm. F. King was instructed to confer
with Chandler P. Anderson, representing the United States
department of State, with a view to a settlement. These
negotiations were without result, and the twelve months
from ratification elapsed without agreement between the
governments. To adjust the matter a treaty was signed
at Washington on May 21, 1910. It conceded Popes Folly
Island to the United States, and the fishing-grounds south of
Lubec to Great Britain.

Up to March 1913 no field-work had been done under
Article l of the International Boundary Treaty of 1908.

Tbe ' Due North ' and ' Highlands ' Lines

Having disposed of the southern portion of the boundary
between New Brunswick and Maine, the next dispute to bie
considered is that concerning the line between the source of
the St Croix River and the St Lawrence. Though it was only
acute respecting the north-eastern boundary of Maine, it
involved the whole line to the St Lawrence.

The decision of the commissioners appointed under
Article iv of the Treaty of Ghent fixed the source of the
St Croix, but left unsettled the whole question of the boundary
from that point northward and westward.

The Treaty of Paris, 1783, defined the boundaries of the
United States, in part, as follows :

From the north-west angle of Nova Scotia, viz., that
angle which is formed by a line drawn due north, from
the source of Saint Crout River to the Highlands ; along
the said Highlands which divide those rivers that empty
themselves into the River St Lawrence, from those which
fall uito the Atlantic Ocean, to the north-westernmost
head of Connecticut River ; thence down along the

i J

'i^

J ■

i 1

: I

\ 1

':■■ I

78o BOUNDARY DISPUTES AND TREATIES

SS? J °^/^^ ?*^' 50 ^^ 'orty-fifth degree of north

..^W •2'?" *?*"S?' **y f '"»« «*"• '^«t on «"d latitude,
until It stnket the River Iroquois or Cataiaquy t thmn

along the middle of said rivet? . . . EastTS a Une t^S

^^ Ji?5l^y ^' ^""^ t° »^ «>««*. and from ito
•puree dmrtly north to the aforesaid Hidilanda SXiS

S^'^-'iHT^ that fall into the AtlanSocSm frS
those which fai 'nto the River St Uwrence, etc.

An examination of this description indicates that the basal
pouit IS the 'north-west angle of Nova Scotia.' which is
defined as the intersection of the due north line from the St
Croix to the higUands.' As the source of the St Croix was
already determined, the determination of the due north line
was a simple matter of careful surveying. Though the
meamng of the word ' highlands ' is plain, viz., lands that are
high enough to form a water-parting between the streams that
flow mto ihe St Uwrence and those that flow to the Atlantic,
and are, therefore, higher than the surrounding country, yet
the controversy raged for over half a century and, on sevoal
occaMons, brought two great nations to the vei^ of war.
. . . *°* Primsuy error respecting the meaning of the word
highfands as used in the treaty of peace seems, strangely
enough, to be attributable to a citizen of the United Statei
JamM Sullivan, who was, later, agent for the United States
on the St Crout Commission. In a map accompanying his
Htstory of ike Dtstrta of Maine, a continuous range of moun-
tarns following the southern watershed of the St Lawrence
IS shown, and is designated ' High Lands being the boundary,
hne between the United States and the British Province of
5?ueb«:. In 1798, three yean later, when presenting the
United Stotes case before the St Croix Commission, 'he
declared that the question of the highlands was " yet resting
on tiie wing of imagination," and that the " point of locality
of tiie nortii-west angle " was " to be tiie investigation of tiie
next century "—a prophecy remarkably fulfilled.' » In 1803
apparentiy in reply to a request, he wrote President Madison
a lengthy memorandum respecting die islands in the Bay of

> Moon'* TnaUt* mud ArbUnUont, i. p. 66.

li>

FROM FUNDY TO JUAN DE FUCA 781
F^udy and the ' hij^tonds ' line. Referring to the latter, he

llie line wkidk runs nordi from the source of the
St Croix, croNes the river St John, a great way louth of
any place idiidi could be suppoted to be the highlands ;
but, iriiere that line will come to the north-west angle of
Nova Scotia and find it^ termination, is not easy to
discover. . . . GnnniissionerB who were appmnted to
settle that line, hav tPivr«iBed the country in vain to
find the highlands cestgnated as a boundary. I have
seen one of them, 1^0 agrees with the account I have
had from the natives and others, that there are no
mountains or highlands on the southeriy side of the
St Lawrence, and north-eastward of the River Chaudiire ;
that, from the mouth of the St Lawrence to that river,
there is a vast extent of hig^, flat country, thousands of
feet above the level of the sea in perpendicular height,
bdng a morass of millions of acres, from n^ence issue
numerous streams and rivers, and from which a great
number of lakes are filled by drains ; and that tiie rivers,
originating in this elevated swamp, pass eadi other, wide
asunder, many miles in opposite courses, some to the
St Lawrence, and some to the Atlantic Ocean.

Should this description be founded in fkct, nothing
can be effectively done, as to the Canada line, witiiout a
commission to ascertain and settie the place of the nortii-
west angle of Nova Scotia. Wherever that may be
agreed to be, if there is no mountain or natural monu-
ment, an artificial one may be raised ; from tiience
the line westward to Connecticut River may be estab-
lished by artificial monuments. . . . Though there is
no such diain of mountains as the plans or maps of the
country represent under the appellation of tiie highlands,
vet tiiere are eminences from whence an horia»n may
be made to fix the latitude {rota common quadrant
observations.^

The Sullivan letter has been quoted at length because
it formed the basis of representations made by the United
States ; it indicates clearly the erroneous ideas entertained
respecting the meaning of ' highlands ' ; it is highly probable
that, had it never been written, the British government

I Amoiy's Lift c/ SuUivau, it. pp. 40}^

• I

7to BOUNDARY DISPUTES AND TREATIES
I!l** "°Lt!!? f*^ ^ qtmtioa, nor could it luve btta

tiJ^a^ ^"J^"' ■f'=«*~y o* •t*te, raquwted this infoniM.
S5ALr«r** ^"^y oP«»«» negotiatioMfor the^ttlement

S^?' Q* A ^^l^'*"* wgRMted that a commisMon. «jiii.
lar to the St Croix Coinini«ion. ahould be appointed

for the d«»cnption In the second alrdcle of the tt^y7t

^!fe to'^^."*/*«*"*u*° ** ««"«"»' Wea thatXl^ne
rfSi fc.f^™'."!** *? the elevated ground dividing Se
nvers falling into the Atlantic, from those ^Dtv^v
AemselvM^to the St Uwrenw. The^^SSSf

of the boundary between the point so fixed. wdX

a hne drawi along the piid highlands, such a iSrenS
to mtennediate sources of riv^ or other IcSSJS

as will adnut of easy and accurate execution hereaftw

Se t^^oM^sr'^" "'' ""^ "'^""' ^*^^'

The suggestion in these instructions that the ' highlands '
T^f^"^^ the treaty wero necessarily a moTS.
tract of country can be traced to Sullivan's memoi3um
quoted above. 'Though the idea underiying thTTS^
obviously wa^ that the substituted line ioSld be d^^
hS't:! PO«ible trough the region where the " hiSs"
had been supposed to exist, yet the letter of Mr SuUivSm •

•ad which W our Go^^^^^^^^^ ^^.r^. ?« "Mtenlti-.
• Vifmi in Anuria, whew the t«nn " dividing higUwd. " i. ,««Uy „^

FROM FUNDY TO JUAN DE FUCA 783

and the inctnicttons of Mr Madison having been com-
municated t-t CongreM and thus made a matter of puUk
record, conceded a point which it was never pomble to
regain.'*

On May 12, 1803, Lord Hawkeabury and Rufua King
signed at London a Ccmvention of Boundary between Great
Britain and the United States. Article 11 provided that :

Whereas it has become expedient that the North-west
Angle of Nova Scotia, mentioned and described in the
Treaty of Peace between His Majesty and the United
States should be ascertained and determined ... it is
agreed that for this purpose (three] Commissioners shall
be appointed ... to ascertain and determine the said
Nortn-west Angle of Nova Scotia, pursuant to the
Provisions of the said Treaty of Peace, and likewise to
cause the said Boundar^^ Line ... to be run and marked
according to the Provisions of the Treaty aforesaid.*

The United States Senate desired to insert an explanatory
article respecting the boundary-line between the Lake of
the V/oods and the Mississippi. This the British govern-
ment refused to accept. A similar settlement attempted
in 1807 by Lords Auckland and Holland, and Messrs Pinkney
and Monroe, also came to naught, owing to differences
respecting impressment, etc.

On February 15, 1814, the House of Assembly of New
Brunswick resolved that a committee should be appointed
to prepare a petition to the Prince Regent praying that,
when negotiations for peace took place, he would 'direct such
measures to be adopted as he may think proper to alter the
boundaries between those States and this Province, so as
that the important line of communication between this and
the neighbouring Province of Lower Canada, by the River
Saint John, may not be interrupted.' *

The importance of securing this territory to Canada was

soma otharwiM weU-infoniMd men, tnch h Mr SnUivan, were not acquainted
with it! technical meuiing ' (Gallatin, Rigkl of O* UmitU StalM to th* NortM-
Milw Bonmiary, p. 33).

' Moofe't Tr*mti4S mnd Arbtirtious, i. p. 68.

• BfilM mnd FonigH Stato Pap*rt, i. p. 1637.

* Gwwa;, BoumiarUt of N*m BnmsmUk, p. 314.

VOL. Tin O

E-> f 1

794 BOUNDARY DISPUTES AND TREATIES
Jjoreughly appredated by tiie New Bruniwick authoritiM.
Thj^ recogniiwi that the due north line would cut off the

ward OUpman, Governor Carieton and othera conceded It.

but hoped that Britid, diplooucy would eff«:t a^SSSS,?
•n~>g«nent. Thu. Chlpman, In 1799, suggeeted that tlw
right of navigation between the Islands of Paaaamaquoddv

Sr^'.llSl^ 7T^*°^ ^"^^ State. iTreSm for
an alteration of the boundary that would praerve the
Madawatka Mttlements to Great Britain.

It was probably due to the New Brunswick petition tiiat.

5 S! ^ '^V^^ **' ?• ^'^^ •"** American negotiaton
of tiie Treaty of Gh«it, August 8, 1814, tiie former proposed
a revision of tiie boundary-Une ' between tiie British and
An^iow territones • merely for tiie purpose of preventing
uncertahity and dispute.' Uter, tiiey explained tiiat tiieir
proposal involvMl such a variation of tiie line of frontier as
SL?^*^' i?^ communication between Quebec and

Sa?'*!. J^. ^ T^^ *^ ^«^«« negotiatore
rqphed that • under tiie alleged purpose of opening a direct

America, tiie British government requires a cession of territory,
forming a part of one of tiieStatesof tiie American Union. . . .
S^ii'Z ~ *"?>°"7 to «de any part of tiie territory of
2 sSSih? «n<i to no stipulation to tiiat effect wiU

Hl-tSf f*"^"**?^^." "'P"*** ^^ ^* boundary of tiie
dwtodt of Mame had 'never been correctiy ascertained;

«1*^°"!.^[*^J.** P***"* ^y ^« American Govern-
mait by which tiie direct communication between Halifax

S ♦2^^t*T*? '""^^P^' was not in contempUtion
of tiie BntMh plempotentianes who concluded tiie treaty
of 1783. They explained tiiat 'tiie British Government
never required tiiat all tiiat portion of tiie State of Massa-
chusetts mtervening between tiie provinces of New Bruns-
wick and Quebec should be ceded to Great Britain, but
only tiiat smaU portion of unsettled country which intercepts
tte commumcafaon between Quebec and HaUfax; tiiere
bemg much doubt whetiier it does not alreadv bekmg to

FROM FUNDY TO JUAN DE FUCA /8s

Great Britain.' The United Statee oonmiaeionen declared
' that they did not decline ditcuanng any matter of uncer^
tainty or diqMite reepecting the boundaries,' and that they
were ' prepared to propoee tin appointment of oommiMioneri
by dw two governments to extend the hne to the Highlands
conformably to the treaty of 1783.' On November 10
they proposed that articles be inserted in the treaty provid*
ing for the a^idntment of commissions to ascertain and
marie the line from the source of the St Croix to the Lake
of the Woods, and to decide upon the claims of Great
Britain and the United Sutes to Grand Manan and the
Passamaquoddy Bay ishuids.
Article v provided that

Whereas neither that point oi die Highlands lying due
North from the source of the River St Crnx, and desig-
nated in the former Treaty of Peace between the 2 Powers,
as the North-West Angle of Nova Scotia, nor the Nordi-
Westernmost haul of Connecticut River, has yet been
ascertained: and whereas, that part of the Boundary
Line between the Dominions of the a Powers, whia
extoids from the source of the River St Croix, directly
North to the above-mentioned North-West Angle of
Nova Soitia, thence along die said Highlanr^i uriiidi
divide those Rivers that tmpt^ themselves into the River
St Lawrence from those which fall into the Atlantic
Ocean, to the Nordi-Westemmost head of Connecticut
River, thence down alon^ the middle of that River to the
45th dq^ree of North Latitude; thence by a Line due west
on said Latitude, until it stnkes the river Iroquois or
Cataraquy, «^ich has not yet been surveyed ; it is agreed
that, for these several purposes 2 Commissioners shall
be appointed, sworn and authorized to act exactly in
the manner directed with respect to those mentioned in
the next preceding article [req>ecting Passamaquoddy
Bay islands] unless otherwise specified in the present
article.

The treaty further empowered the commissioners to
cause the boimdary from the source of the St Croix to the
St Lawrence to be surveyed and marked. It also provided
for the preparation of a map r ' the boundary which should

'* '4

■\l" i

■'I? 1.

It)

786 BOUNDARY DISPUTES AND TREATIES
be considered a. • finally and conclusively finng the said
Boundary • and for a lefcmice to a ' FrieidlyW^grir
State if the two oommissionefB differed.

Under the provisions of Article v, Thomas Barelay, who
had dready senred on the St Croix Commission. wwaSSnted
on the part of Great Britain. CoiaeUus P. Van 527*
S^"Tf 05."^°°*' ''*• appointed commissioner on thepkrt
of the United States. As Barclay was also a member of tiie
Passamaquoddy Islands Commission, it was arranged to hold
the initial meetings of the two commissions at the same time.

«T8?r'??!l?*/^T^*'''***'^*^'^'^'N.B.,on September
rLlVvt' .^ V*"^ Chipman appeared as agent on the part of
oreat Bntain. The same objection was taken to his com-
mission under Article v as to his commission under Article iv
—the Passamaquoddy Islands Commission-and the diffi-
culty was solved in the same way.

anH^n"°* 't^^n^'.?'^ commission reconvened at Boston,
^d WiUiam C. Bradley presented his commission as agent

SL^ iSi^^'.^"^'^ ^**'^- Two parties of sun^rs
were instructed to commence operations. One, under

£^c JiT^ Bouchette, surveyor^eneral of Quebec, was
mstnicted to mate a reconnaissance of the country done
aie due north hne from the source of the St Croix to ascertain
whether it mt«,ected the highlands of the treaty of i^^

f^V^o^?. "^ ''** *° '""'"y ***« *^"« °°«J» «°« with a
fc^^amount of accuracy, measured by the standards of that

i,-,??!.^*^ '^' leai. the commission met at New York to

*Sf »?M ^'^r*"*'***' *^^ ''^^' Various meetings were
atao hdd m June August, September and October, ^d on

S^fenJ r"" *'""*? *°.* '^- As the commissioners
toiri^-.?.*^' ^^y adjourned till the following year
to prepare their respective reports for reference to a ' Friendly
Sovereign or State' as provided by the trea^. M^ore
says that wjien the board reconven^ on A^ i. ^^
^troversy as to procedure was renewed, with m^y
SlTlt .l^J recnmmations as to the responsibiUty for
the delays that had supervened in the execution of the work

FROM FUNDY TO JUAN DE FUCA 787

of the commisrion,' and that the afguments wete ' charac-
terixed by not a little acrimony.'

The British agent claimed Mars Hill, forty miles north
of the source of the St Croix, as the north-west angle of
Nova Scotia. The surveys of the due north line showed
that it was the first mountainous elevation intersected ;
that the St John River was crossed at the 77th mile; that
the water-parting between the St John and the Restigouche
~-a river flowing to Chalmr Bay—^za intersected at the
97th mile, and that the watershed between the Metis and
Restigouche — the water-parting between the St Lawrence
and Chaleur Bay — was intersected at the 143rd mile.
Between the 97th and 143rd miles, therefore, the line
was in a basin draining to Chaleur Bay, and, unless the
Gulf of St Lawrence was considered part of the Atlantic,
it nowhere intersected the water-parting that ' divides those
rivers that empty themselves into the River St Lawrence,
from those which fall into the Atlantic Ocean.' He further
claimed that the water-parting between the Metis and Resti-
gouche did not possess the elevation or continuity charac-
teristic of all ' highlands,' whereas the Mars Hill line did.
That the latter did not itself divide St Lawrence waters
from Atiantic waters, but, in part of its course, divided minor
tributaries of the St John, and, in the remainder, to the
source of the Chaudi^re River, divided the St John from
the Penobscot and Kennebec would seem to require ex-
planation. But the British agent anticipated objections
on this score by aiguing that the treaty should be inter-
preted according to its spirit and not its letter. He said
that the words 'north to the highlands' are 'evidentiy
to be imderstood as intending that the North line should
terminate whenever it reached the highlands, which, in any
part of their extent, divide the waters mentioned in the treaty,' *
and that they need not divide the waters ' in their whole
extent.' He proposed to reverse the language of the treaty
and trace the line ' from the north-westernmost head of the
Connecticut River, alongthehighlands'whidi divide those rivers,

> Gallatin, Thi Right of th* Unu^ SM*$ to tk* NorthHast*m Bomtdary clainui
by Tktm, p. 23.

;

■'I i

788 BOUNDARY DISPUTES AND TREATIES
etc., to the North-west Angle of Nova Scotia, viz., that angle
whi^ u fon^ by a line drawn due north from the ^
^,,^1^"^ ^"^^^ ^^ iJitfi^dB.' This suggested Km
followed the southern watershed of the St Uwtence to

f?!?^"* ^""^^ "} *e head of the Penobscot, and for
ti^t dist^ice coincided with the line claimed by th^ Um'tel
fif* *u Me^ennette Portage it ran eastward along

^LT^rV^^ °' *^* S* Jo'" '^^ of the Des ChutJ
a tributary of the former. The British agent contended t^
Ais hne was to be foUowed because it was absolutely essential
that It Aould foUow highlands, whether they divided riven,
mentioned m the tnaty or not ; also, that the elevations on
this line were ti conttnuation of the highlands which, from the
Connecfacut to Metjermette Portage, were acknowledged by
both parties to fulfil aU the conditions of the treaty

To support his contention that the treaty assigned to
each nation the sources of the rivers emptying through its
own territories, the British agent quotJd the bounSri^
daun^ by Congress in 1779. They claimed the St John

^ll^'^T ?«!? T"*^ ' *' ^f *"*«™ boundary'and.
practicaUy. identified the source of the St John wii the

^t^ f ^'*. °^ ^""^ ^^ "« "P«ed that, having
forced the Americans to recede from the St John, it was
mconceivable that Great Britain would concede the upper
portion of Its valley. *^*^

He also claimed that the disputed temtory had been
occupied and jurisdiction had been exercised by Great
Bntam smce 1763, and by France, her predecessor in title
tor many years prior to that date.

The agent for the United States claimed, as the north-
west angle of Nova Scotia, tiie intersection of tiie due nortii
Une with tiie water-parting between tiie St Lawrence and
the Restigouche. His claim was based upon tiie recognition
of tins water-parting for many years, as tiie boundary
between Quebec and Nova Scotia ; tiiat it was so indicated
in aU maps and records from tiie cession of Canada in 1763.
Si t^JT^ of peace in 1783, and later ; tiiat, in 1797
Ae British agent, when making his argument before tiie
&t Croix Commission, had admitted the correctness of tiie

FROM FUNDY TO JUAN DE FUCA 789

United States claim, and that it had been admitted by
British officials and other authorities. He contended
that the tenn ' highlands,' being connected with the words
' which divide the rivets,' etc., affixed to the expression a
definite and precise meaning ; that, as the ground dividing
rivers is necessarily more elevated than those rivers and
their banks, it is properly designated ' highlands ' in rela-
tion to those rivers, and that the reports of the surveyors
showed that the country was sufficiently nigged to fulfil
the conditions claimed by Great Britain as necessary to
constitute 'highlands.' In reply to the British contention
that the line did not divide die waters flowing into the St
Lawrence from those falling into the Atlantic, he aigued
that it was only necessary that it separate one class of waters,
viz., thoxe falling into the St Lawrence, from another class,
viz., all other waters, and that, therefore, it fulfilled this
condition ; and that the British contention was unimportant,
as Mitchell's map showed the Restigouche lying altogetl x
to the east of tiie due north line, and the intent of the
n^otiators was apparent.

For the 'north-westernmost head of the Connecticut
River ' the British agent claimed Indian Stream, while the
United States agent claimed Hall Stream.

From the Connecticut River, the line followed the
45th parallel to the St Lawrence. As this line had been
surveyed by Valentine and Collins prior to 1774, and as
the western terminus had been verified by Andrew Ellicott
in 1817, no suspicion was entertained that it had not been
correctiy surveyed. In 1818 Dr Tiarks and F. R. Hassler,
the British and American astronomers, discovered that,
at Rouses Point, on the west shore of Lake Champlain, the
'old line' was 4200 feet north of the parallel, thus throwing
the Rouses Point fort, constructed at a cost of $1,000,000,
and another fortification into British territory. When the
line was surveyed and marked under the provisions of the
Ashburton Treaty, it was found to be, in places, one and a
quarter mile north of its true position, and south of Hunt-
ingdon, Quebec, to be six-tenths of a mile south of the
parallel. Fearing a kxal uprising, the astronomers, at first,

f.i

i;ii

790 BOUNDARY DISPUTES AND TREATIES
dijdojed it only to the agents. The United States agent

EZT^ *°J^* *?•* *^* "°* »« detennined by ^^
htotude instead of observed latitude, which would li^lS^
the pandkl thirteen miles north of the true latSde tS
^postejous proposition, however, was not suSS'byX
commissioner for the United States. ^

The commissioners held their final session at New York.

&\^' '^'l- 2*^ ^^ ^«' di-agreeing opLS wS^
had been exchanged at New York on^October 4 in i^DiS
c«lmg year, and presented their respective «pom. whi± w^
tiaMmitted to the contracting governments,
ra^ mL Sf ~™°^«on«' stated tiiat, in his opinion,
SJtJI^h? J!:*" ** ^o'^-west angle of Nova &ot^
S H ?«i? ?°X*-''«»temmost stream which emptied intoX
S il i5,r r^°'^*'"'' ?!^''' ''^ ^« noth-westemmosJ
wtl Ik 15°",°****^*' <'> ^^^^ ''«'* of the Comiecticut
River^ the boundary should foUow the 45th parallel ^S

Sle^. ^""^^ '^"^^ *» orJLry^^^lSSl

ia\^iyi!^^^u^^ commissioner was of tiie opinion
Sd t J^r^'^T"^ *"«'* °' Nova Scotia was one hunZd
and for^-tiiree miles north of the St Croix, in the watS
^trtog between the St Lawrence and Restigouche wTim
W Aat tiie head of the west branch of Indi^S^t^
tJ^^. °' *^* .^°°°«=ti<="t .. (c) that it was not^^^
to report any opimon respecting tiie •45tii parallel ' linT^

Akbitsation by thb King of the NETHEM.Am)s
/b^cle V of tiie Treaty of Ghent provided tiiat in the
S °l^*^%~«»«»««>ners differing, a i*fe,«,ce should b^
^^ 1^*"^ !°^~«° °' State.' but tiiere was n^
SSSrii, *T*^ "^^ procedure, limitation of time^fo?
SSi^^a^Tf • *''• With the government of N^
S^?«. ^1 !. S^^'*?"*"* of Maine both claiming
CtS^olIlv * *^P"*«*,»««. the material for a conflirt

In 1825 trouble arose respecting Ucences to cut timber in

- r'

FROM FUNDY TO JUAN DE FUCA 791

the disputed territory. Great Britain claimed that, while
no enooadunents on acknowledged United States territory
would be pennitted, the British settlements on the St John and
Madawaska Rivers had been granted 1^ the ciown thirty years
before, and had been unprotested for twenty years. Pending
a settlement, it was agreed, in 1827, ' that no exercise of ex-
clusive jurisdiction by either party, while the negotiation
was pending, should change the state of the question of right
to be definitively settled.' In the same year one John Baker
was arrested by the authorities of New Brunswick. The
United States demanded his release, and ' a full mdemnity
for the injuries which he has suffered.' A protest was made
' against any exercise of acts of exclusive jurisdiction by the
British authority' in the disputed territory. The British
government renlied that Baker had stopped the mail from
Canada, hoisted the American flag, and had formed a com-
bination ' to transfer the territory in which he resided to the
United States.'

In 1826 the United States, through Albert Gallatin, United
States minister at London, opened nqiotiations with a view to
settling differences between the two nations. On September
29, 1827, a treaty was signed by Charies Grant and Henry
U. Addington, on behalf of Great Britain, i by Albert
Gallatin, on the part of the United State t provided
tiiat the contracting powers should proceed i oncert to the
choice of a friena*/ sovereign or state as arbitrator, and
endeavour to obtain a decision within two years ; that new
statements of case should be prepared for submission to the
arbitrator and mutually communicated to each other, -^""h
party to be at liberty to draw up a counter-statement ; t.
Mitchell's map and map 'A'— which had been agreed on as
a delineation of the water-courses — ^were the only maps to
be considered as evidence, mutually acknowledged, of the
topc^praphy, though either party was to be at liberty to annex
other maps to its first statement, for purposes of illustration ;
all statements, ttc, to be delivered in to the arbiter within
two years after the exchange of ratifications, unless he had
not, within that time, consented to act ; in which case they
were to te laid before him within six months after he con-

VOL. VIII p

'f:i

79a BOUNDARY DISPUTES AND TREATIES

•entedtoact; that the arbiter could ask for further evidence
•nd for additional surveya. Article vn provided that the
deoMon of tiie arbiter ihould be final and conclusive, and
•houW be 'carried witiiout reserve, into immediate effect
by Commisstoners appointed for that purpose by the con-
tractmg parties.' '

The convention was ratified at London on April 2, i8a8.
For arbitrator, the contracting parties agreed on the long of
the Netheriands.

The «se for Great Britain was apparentiy prepared by
VWlham Hu8]a«»n and Henry U. Addington, assisted by Ward
Clupman. Jr. The statement for the United States was
prepared by Albert Gallatin and WUliam Preble. As might
be expected from tiie abiUty of tiiose engaged in tiieir prepara-
tion, and as they repitisented tiie results of investigations
extendmg over fifteen years, the statements were masterly
presentations of the respective cases.

Before discussing tiie statements of case, it is necessary
to reviw tiie acts of state, etc., tiiat affect tiie titie to tiie
disputed area. To do so we must retrace our steps to tiie
Alexander grant.

wr.i^ "^^ "l**^' J*"** » granted Nova Scotia to Sir
William Alexander, September 10, 1621. The grant was
bounded on tiie west by tiie River St Croix from tiie Bay of
Fundy to tiie remotest source of its western branch, tiience by
an imaginary straight Une which extended through the land
or ran nortiiward to tiie nearest tributary of the St Lawrence,
thence easterly along tiie soutii shore of the St Lawrence to
Gaspe, etc.

On April 3, 1639, Charies I made a grant to Sir Ferdinando
&>rgM, which virtuaUy confirmed a patent given to him in
X622 by the Plymoutii Company. It included the territory
between Piscataqua River on tiie west and Sagadahock*
River on the east, and extended one hundred and twenty
imles nortiiward. This grant was transferred to tiie Massa-
chusetts Bay Company, March 13, 1677.

On March 12, 1664, Charles 11 granted to James, Duke of
York, the area commonly designated on old maps— including

» The Kennebec River belov the Androscoggin.

FROM FUNDY TO JUAN DE FUCA 793

Mitdidl's map-Sagadahock. It extended from the St
Cr^ westward to the Pemaquid and from the sea-coast to the
St Lawrence. As, by the Treaty of Breda, Acadia or Nova
Sootia had been restored to France, the grant was confirmed
by Charles 11, June 39, 1667. On the Duke of Yoric's acoessbn
as James n it was merged in the crown.

On October 7, 1691, V^IIiam and Mary granted the
charter of the Province of Massachusetts Bay. It included
'The Colony of Massachusetts Bay and Cok>ny of New
Plymouth, the Province of Main, The Territory called Acoulia
or Nova Scotia,' and the tract of land between Nova Scotia
and Maine. By the Treaty of Ryswidc, September 10, 1697,
Nova Scotia was again restored to France.

By the Treaty of Utrecht, March 31, 1713, Nova Scotia
was retroceded to Great Britain, but was not re-annexed to
Massachusetts Bay, being erected into a separate province.
In the commissions to its third governor, lUchard Philippe,
issued September 11, 1719, and other governors down to
1761, it is described as the province of Nova Scotia or
Acadie in America.

By the Treaty of Paris, February 10, 1763, Nova
Scotia, Cape Breton and Canada were ceded to Great
Britain.

The royal proclamation, October 7, 1763, described the
new Province of Quebec as bounded on the south by a line
drawn from the south end of Lake Nipissing; 'from whence
the said line, crossing the River St Lawrence and the Lake
Champlain in forty-five degrees north latitude, passes along
the hi^ lands which divide the Rivers that empty themselves
into the said River St Lawrence from those which fall into the
Sea ; and also along the North Coast of the Baye d» Chakurs,
and the coast of the Gulph of St Lawrence to Cape Rosiers.'
The Quebec Act, 1774, defined the enlarged province as
* bounded on the soudi by a line from the Bay of Chaleurs,
along the high lands which divide the rivers that empty
themselves into the River St Lawrence from those which fall
into the Sea, to a point in forty-five degrees of northern
latitude, on the eastern bank of the River Connecticut,
keeping the same latitude directly west,' etc. These were.

m BOUNDARY DISPUTES AND TREATIES

of count, tiM booncUriet <rf Quebec at the date of the tmty
of peace, 1783. "* ^'^^

Aa aUjady .uted, the commiMlon. of governon of Nova
Scotia did not, prior to 1763. define the boundaries of thdr

gv^^t. the lack of definition being due to the Sff^^
Jrtw^ Fiance ^ Great Britain le^ecting the liSttof

^^K**' '^T* ^**^ 0» November ai. 1763. dx wi^
after the proclanwtion, a conuniMion wa. i«u5^ to MooSS
JjrUmota. governor of Nova Scotia. It defines the bounSS
hie government, in part, aafoUowe: »~uiih.w

.ni!S?*£ i! wwtward, although our said Province hath

Sf wSlT"^*****'**"**^ ^^.°' "8»»t "tend, as fuiu
toe fcver Pentagoet or Penobscot, It shaU b^ bounded

toe Bay of Fundy to toe mouto of toe River StcSx •

J^^y ofoSeSr* "^ ^' ^^*™ Boundary ^ S;

to JilnsSf*"**"*^"*'^ ?** P^'^^P*' ^'^^ Of •*>««. prior
BriS?n^n^?K"i*i' negotiations for toe peace between Great
Bntom and toe United States, that affect toe disputed area.

StaSdeS?^*: ir^' ?' ^""^ °^ **»« cLederated
to^^'!5*"!°'P****'*'»**»"°darie8 claimed by
toem. They are defined as follows: ^

f«2'^f ***-K*" bounded norto, by a Une to be drawn
&io*^* Si*^ !??*^.*"?'« «>' Novk Scotii alongtoS

SrS,* Ari^l- i^?Cl* I^WTMice, from toose V^ich Si
mto toe AtUmtK* Ocean, to toe norto-westemmost hrad
of Connecticut Wvw ; toence down along £e^SS&
th^r'^J^^^ fortv-fifto degree of north ktiSS •
toence due west m toe latitude forty.five degri nSto

R?^r?^'^"**°' ^ the north-westemmost^dTo" toe
SiA Sl^'^T'^'^'" Cadaraqui ; toence straight to to^
souto end of Nepissing ; and toence straight totoe soui^
^l^^^'S^ MiMssippi: west, by a line to^ draSSi dSS
toe middle of toe Wver Missis^ppi from ite aSiras ^

^i?5 f' ?*''*'■ f'^™. '*• »"'» *o ite mouto inthe
Bay of Fundy. comprehending aU islands witota Sn^

FROM FUNDY TO JUAN DE FUCA 795

iMBiM of any (wrt ol the ■horat ol the United Statai.
and lying between lines to be drawn due cast fiom the
points where the aforesaid boundaries between Nova
Scotia on the one part, and East Florida on the other
part, shall respectivdy touch the Bay of Fundy and
Atlantick Ocean ... If the line to be drawn from the
moudi of the Lake Nepissing to thehead of die Mississippi
onnot be obtained without continuing tiie war fcM-
that purpose, you are hereby empowered to agree to some
other hne between that point and the riverMiasissippi ;
provided the same shall in no part hereof be to the
southward of latitude forty-five degrees north. And
in like manner, if the eastern boundary above described
onnot be obtained, you are hereby empowered to agree,
that the same ihall be afterwards adjusted, by Com-
nussionen to be duly appointed for that purpose.

It will be noted that :

z. The description of the ' highlands ' of the northern
boundary is the same as in the proclamation of 1763 and in
the Quebec Act, except that 'Atlantick Ocean ' is substituted
for ' Sea,' doubtless to make the description more specific.
This identity proves that, in drafting the instructions, this
portion was copied from the Quebec Act

2. For the first time the term ' north-west angle of Nova
Scotia ' is used and defined. As this was the initial point of
the nordiem boundary, it is obvious that it must be the
interMction of the eastern and northern limits, and that the
descripticms of these limits should define its position. Arguing
on this basis, it is evident that Congress, in 1779, placed it in
thehig^ilandsattheheadoftheStJohn. Moore argues that
it is the branch * shown on Mitchell's map as heading in
Lake Medousa,* but this is inadmissible. This theory was
also advanced by Gallatin, who says, ' If the source of the
St John, designated in Mitchell's Map by the name of NeiMssi-
gouche • was, as d w hdieoed, the source intended by Congress
and by the American negotiators, the River St John from its
source to its mouth, would have been with great propriety

' MacUwaika river of modan maps.

* Temiioonmte Lake of modern maps.

* A laJce near the bead of Temiacouata Lake.

» ;

11 (

796 BOUNDARY DISPUTES AND TREATIES
*w|bed u the cMten bouaduy of the UoitMl StetM.'

iL^JrtV^^ '^^'r* '^♦■iw that mSJTZ^
jwwed by Congw-, thm Is the additiooia hct that aS
2«2^«JPPOjei the committee ol Coag«. that dnift«l
the deKripdmi to heve been oompoeed of men of tmiMial
•»d extnordinuy etapidity. Fiadly, on Bfitchen'eVnd
od,«N»uthorit.tlve m^m, while thklSi^h i. notdSiJSd
St John river, the maim tinam abav$ its eamfbumUirZ
fniptaM. WhUe the wording of the deKriptionleabrtlutely
fa ««)rd«nce with the Britid. contention, it ta«,ty «S2S
*° "*^^ ?»««■• *»«rinK fa mfad the draumi^moM
wmiectod with the dmftfag of it. A criticJ«mSS
•how. tluit, » far a. thi. portion of the boundi;^^

wSSn^SS! ?\?*^i^'.^3. Thefatenectionofthe
^^Jernboundary of Nova Scotia and the «outheiii boundary

and loathem boundaries were then drafted. On the east.

MMot be obtafaed' he was empowered to agree to the
appointment of commissioners who should determfae the
boundary, the awarded Ifae to follow the boundary between

^^Tl^^l"^^',^^^"^' '"^hortThe was to
dami to the St John ; if this was not obtainable, they were

to the St John, they overlooked the defect thus created. It
must also be borne m mfad that, at that date, the unsettled
wildoneas of the faterior appeared abnost valueless <»mp!ured
with the aea-ooast. Again, had they claimed the St JohTto

2?W?!*"*r^ ^' ^t **•*?? °ort»»ward, they would have
■Justified themselves by acknowledging the baselessness of
their claim to the moreeasteriy riven^

(o) So far as the writer is aware, this is the first time that
the tenn north-west angle of Nova Scotia' was used fa
My official document. As indicated above, it is unfaten-
tionaUy placed at the head of the St John, fastead of at the

o? AeTt O^*^ ^ **"' "^"^ "°* ^"** *•** "°""*

FROM FUNDY TO JUAN DE FUCA 797

Q>) The errar of defining the boundary-line fnxn the
nMNtth ol die St Croix aa running ' due east ' instead ol ' due
•oudi' also ociginatad in this document This error has
in connection widi the Passamaquoddy

(c) Between the St Lawrence rod Laice Nipissing. the
commissioner was to demand the southern boundary of
Quebec as defined in the Prodamation of 1763, and thence
due west If this was unobtainable, he was empowered to
accept the 4Sth paralkl— the prolongation westward of the
cordieni boundary of New York Sute.

These instructions have been discussed at length, as, in
1783, they formed the basis of the demands of the American
nqiotiators. The instructicms demanded the St John,
although a tptdal committee of Congress had, on August 16
of that year, reported that the territory dengnated Sagada-
hock 'cannot be prover* to extend to the River St John as
deariy as tiiat of the St Croix.'

During the summer of 1783, nq;otiations for a treaty
of peace were carried on by Richard Oswald on the part of
Great Britain, and Benjamin Franklin and John Jay on
behalf of the United States. Later, John Adams joined
them as an additional American negotiator. Oswald*
assented to the demand for the St John River, and the line
from the St Lawrence to Lake Nipissmg and thence west
to the Mississippi. The British government refused to
approve these boundaries, and, eventually, the eastern
boundary was settled as described in the treaty of peace.'
On tiie north, the Americans offered to accept either the
45th parallel or a line up the St Lawrence, through
the Great Lakes, up 'Long Lake and River* to Lake of the
Woods and due west to the Mississippi. The latter line was
adopted, and the preliminary treaty of peace was signed on

• Suprm, p. 768.

» Cawald wai dMcribwl bjr FimnUin m « • pMifical man.' FltanMriea,
the biognpher of Lord Shalbonie, nys, ' Nobody conld in any cue hav« been
mora unfit both by chanctaf and habiti for engaging in a diplomatic intrina
than Oswald. whoM limpUdty of mind and itiaightforwardnaaa of character,

•tmck aU who knew him • {LC/» 0/ WOJiiMii, £«* «/ S»#»«iii#, iii. p. 183).

• Supnt, p. 75a.

J -i

i ;:

1 1

798 BOUNDARY DISPUTES AND TREATIES

HovtaAKT 30, 178a. The Mune •rtide wm included b the
definitive treety, September 3, 1783.

In I7«4 New Bnintwidc wee erented into a eepente
province. In the oommiMion of ite iim governor. Thooua
Jrieton, Augurt i6, 1784. it i. deecribed •• bounded on

Sirs ^^^l^"^*™* *•***"• »<>^ ""•• •»«». on the
north, by the eouthem boundary of Quebec.

The foregoing ie a brief review of the prindpai acta of

•tate, etc., pA>r to the eubmieiion to the arbitntor, the

Mng of the Netherlande. The prindpai grounds of ckim

put forward by the contending parties wiU be now stated

with comments.

The 'Stotements'* dealt with the subject under thrae
general heads, vue. :

(1) North-west angle of Nova Scotia and the HigMands.
(a) North-westernmost head of Connecticut River
(3) The Une along the 45th parallel from the Connecticut
to the River Iroquois or Cataraquy '—the St Uwmice.

Tbb BunsH Statbmbnt
JVflfrtHserf Ah^ of Nova 5«Kw.-Great Britain con-
tended that Mars HiU, the Bnt considemble elevation
cBOountered on the due north line from the source of the
StCroix, and forty miles distant therefrom, was the north-
west angle of Nova Scotia ; • that the highlands intended
by the treaty are those extending from th&t point to the
Connecticut River; and that the Rivers Ptaobecot, Kennebec
and Androscoggin are the rivers idling into the Atlantic
Ocean which are mtended by tiie treaty to be divided from
tne nvers which empty themselves into the River St
Lawrence ;■ tiiat the highhnds chimed by die United
StatM divided, near the due north line, waten falling into
tte River St Uwrence from those falling into the Gulf of
St Lttwrmce, and, farther west, waters foiling into the St

it'

J^ImUJi ■■ *r»

EASTERir CAJXAJUL'WXUXD STATES
BOUNDABY

-3» »

BauUrr dalaM kr Onat BriUlm, in*-lMl.

■f ■•■ 4- ■«. laudUT olataad tjr Uoltod atatd, ITM-lMt.

■gaaduy aoooMUac to tht Awu< of U* EUf o( U* MathtrUndi, Jul ICO, UU.

■oaitfUiir u azad br tt« Aihawtoa TTMtr. Aag. *tk, Utt.

tnatarj ocBt«B<l«d for ty Onat MUla, im.

. — tcmaitty ooatondid tat Hj Uolta lUtM, ITM.

--f*— «« loaBlMT awMdtd Oot Ktk, ITMk ky fUMHilmnw uadw Jar TtMtf.

..«..-)■• UhIU <( Oraat to Hr WlUlaa Ataztadtr, Sept. Mtk, lin.

flw;A»>ui^Olii|l mifcic*! Inaututa

jVyawit V -S"!" ''lUte, r.M.6.S., t

I'lt.e.S; ifrttt{y (br "CaruiJa, attd Ju AvWiuiw*

i-i

f 1

FROM FUNDY TO JUAN DE FUCA 799

Lawrence from thoae flowing through the St John River
into the Bay of Fundy, while the ' highlands ' of the treaty
divided^ waters flowing into the St Lawrence from those
falling into the Atlantic Ocean. Accoiding to the British
statement, this was 'the cardinal point of the whole of
this branch of difference/ inasmuch as the treaty contra-
distinguished the Bay of Fundy from the Atlantic Ocean.
Thus, the St Croix was defined as the extreme eastern limit
of the United States, and the highlands were those that
divided, on the south, rivers that fell into the Atlantic
between the Connecticut and the said eastern limit— the
St Croix. Further ground for this argument was obtained
from the negotiations for the treaty of peace. The Americans
first demanded the St John. When this was refused by Great
Britain they accepted the St Croix ; consequently the new,
and contracted, line must have lain within the line of that
river. Therefore, at no point east of the source of the St
John did the highlands claimed by the United States meet
the requirements of the treaty.

Further support was obtained from the grant of the
seigniory of Madawaska. In 1683, eight years prior to the
charter of Massachusetts Bay, this fief was granted by the
then governor of New France (Canada). From the date
of the grant till 1763, when Canada was ceded to Great
Britain, it was under the jurisdiction of New France. Since
1760 the British government had been in undisturbed pos-
session. Along the St Tohn River, between the due north
line and the mout* <-. ^g St Francis, there was a fringe of
settlements on eaci. uaiik of the river. This, usually referred
to as the Madawaska settlement, and which should not be
confounded with the Madawaska seigniory, was settled by
Acadians, who had originally occupied territory near the
site of the present dty of Fredericton, N.B. When the
British extended their settlements up the St John, these
Acadians removed to the St John near the confluence of the
Madawaska. Grants of land had been made to them, and
jurisdiction exercised by the Province of New Brunswick
since 1783. The territory was traversed by a road, the
main highway from the Maritime Provinces to Quebec.

VOL. VIII

I:!

\\l

800 BOUNDARY DISPUTES AND TREATIES
Though comparatively modern, the aettlement was. unqoet-
tionably, a d« facto poasewon of Great Britain. Prior to
1820 no mention wis made of it in the United States census,
and even then it was stated that the inhabitants ' supposed
they were m Canada.' »•»«-«»

♦.™*fK^^*^-~9'~* ^"**^ contended that the
term higUands employed in the treaty impUed not a
mere watershed, but a mountainous tract of country ; that
while not necessary that they should present an absolutely
unbroken ndge, they should have a generally elevated and
mountainous character; that the highlands from Man
HiU westward conformed to this definition, and that not
one-third of the United States Une foUowed country entitled
to the appellation of highlands.
In brief Great Britain contended :

(1) pat in the treaty of 1783 the Bay of Fundy was
oontia-disbnguished from the Atlantic Ocean; that the
. l°ut»^ "f ^""^^"^ not to be included in the rivers

which faU mto the Atlantic Ocean * ; and that, consequently,
the highlands must lie to the southward of that river.

(2) That in 1782, plenipotentiaries for the United States
daimed the St John River from the mouth to the source as
toe eastern boundary of Massachusetts Bay ; that, later
they agreed to a material contraction of this line.

(3) That within the territory claimed by the United
States France, and Great Britain as the successor in title
to !• ranee, had exercised jurisdiction since 1683.

« nu That'""!?,*'*® *'***y °' P^<* »n »7S3 to the Treaty
of Ghent, 1814, Great Britain had exercised continuous and
unchallenged jurisdiction in the Madawaska. Aroostook and
other settlements in the disputed territory.

.u.?} ^*.* ^^ ^* claimed by Great Britain followed
highlands tiiat conformed to die requirements of the treaty,
and that the highlands claimed by die United States did
not so conform, either in position or in character.

North-westernmost Head of CoHnectkut River:— Gnat
Britain claimed that this point was to be found in tiie most
nortii-westeriy spring measuring from the highest point on
the nver beanng the name 'Connecticut' Near die 45tii

Fill

FROM FUNDY TO JUAN DE FUCA 8oi

paraUel, two considerable brandies, known as Hall
Stream and Indian River, fall into the Connecticut. The
latter, however, retains its name up to an expansion known
as Connecticut Lake. The British statement, therefore,
contended that the most north-westeriy spring in the drainage
area above Connecticut Lake was the desired point. The
statement also pomted out that, while tiie American agent,
under Article v of the Treaty of Ghent, had contended for
Hall Stream, the American commissioner had claimed
Indian River. The government of the United States had
adopted the claim for Hall Stream, and had also claimed
tile ' old line ' for the 45th parallel. Inasmuch as the 'old
line' intersected Hall Stream above its junction with the
Connecticut River, this boundary could never strike the
real Connecticut river at all.

'Forty-fifth Degree of North Latitude.'— By the treaty
of 1783, the boundary followed due west on the ' forty-fifth
degree of north latitude ' till it intersected the St Lawrence.
The surveys of 1818 showed that the ' Valentine and Collins '
or ' Old ' line was, in places, in error ; and that at Rouses
Point the fortifications erected by the United States were
on British territory. The British statement claimed that the
treaty required that the line should follow the 45th parallel
of north latitude as determined by accurate methods of
survey.

Statement on the Pabt op the United States

The statement of the United States dealt with the subject
under the same heads as the British statement.

The ' H^Uands.'—Resptcting the highlands, it was
declared that they constituted the fundamental point.
The term * highlands ' was never used in the treaty, except
when connected with the words ' which divide the rivere,'
and, therefore, this property of dividing designated rivers
affixed to the term a definite and precise meaning ; united
with that adjunct, the word was judiciously selected, as
it was applicable to any lands sufficiently elevated to
form a watershed. The term ' highlands which divide rivers '

80a BOUNDARY DISPUTES AND TREATIES
and 'height of land ' were synonymous. Even so late as
TT IJ c *='»*"5*«'" o' the country was unknown, and the
United States hne was still only partially examined. The
elevated or mountainous character of either Une was un-
important and irrelevant to the questions at issue

North-west Angle of Nova Scotia.~The United States
statement canned that there were only two places on the
due north hne which divided rivers recognized by the
treaty. About ninety-seven miles from the source of the
bt Crout, the hne reached a ridge or ' highland ' which divided
waters that fell into the St John from waters that flowed
through the Restigouche into the Gulf of St Lawrence. At
about one hundred and forty-three miles from the souree
of the St Croix, it reached the ' highlands ' that divide the
watera of the Restigouche from the waters of the Metis,
a tributary of the St Lawrence. There was no possibte
choice except between those two places. Since there is no
other point on the due north line which divides any other
waters but such as empty themselves into the same river,
the north-west angle must, of necessity, be found at on- or
tne other.

The American statement ai^ued that the selection
between these two dividing 'highlands' depended upon
what the negotiators of 1783 meant by rivers that fall into
the St Lawrence, and by rivers that fall into the Atlantic
1 he treaty recognized only two classes of rivers. The first

class included only tributariesofariver specifically designated,
thus cxphcitly excluding any other rivers. All other stream^
mtersected by the line were considered as falling into the
ifitlantic Ocean. This conclusion perfectly accorded with the
accepted meaning of the term 'Atlantic Ocean.' In its

fZS.H^r '• u*"l^u'^'!i*" ** ^y^' ^"« ^"d inlets,
though distinguished by different names, which were formed
by the shores of Europe and North America. In the case
under consideration, every river, not emptying itself into the
St Lawrence, and mtended to be divided which was. or could
have been, contemplated by the negotiators of 1783 as falling
mto the Atlantic, fell into it through some gulf or bay!
known and, in Mitchell's map. specifically designated ; that

FROM FUNDY TO JUAN DE FUCA 803

18 to say : the Restigouche through Chaleur Bay and Gulf
of St Lawrence, the St John through the Bay of Fundy, the
St Croix through Passamaquoddy Bay and Bay of Fundy, etc.
So that if the rivers which fell into the Atlantic through a
bay, gulf or inlet known by a distinct name, were not, under
the treaty of 1783, rivers falling into the Atlantic Ocean,
there was not a single river intended to be divided to which
the description applied. The rorth-west angle was, there-
fore, at the point where the due north line intersected the
watershed between the Restigouche and Metis.

From 1763 to 1782 the northern boundary of Nova Scotia,
as defined in commissions to the governors of that province,
coincided with the southern boundary of Quebec to the
•western extremity of the Bay des Chaleurs.' From 1763
to 1774, in the commissions to governors of Quebec, the
southern boundary of that province was described, in con-
formity with the proclamation of 1763, as a line which
' passes along the highlands which divide the rivers that empty
themselves into the said River St Lawrence from those
which fall into the sea, and also along the north coast of the
Bay des Chaleurs.' The 'highlands' of the treaty were
identical with the ' highlands ' of the proclamation of 1763
and of the Quebec Act, 1774, and the term 'Atlantic Ocean,'
as used in that clause of the treaty, was synonymous with the
word ' Sea ' as used in previous acts of the British government.
Nineteen maps, published between 1763 and 1783, were
annexed to the United States statement. In some the
Penobscot was indicated as the western boundary ; in others,
where the St Croix was indicated as the boundary, the name
was sometimes applied to the present Cobscook, to the
Magaguadavic and to the Schoodic. The course of the line
from the source of the St Crouc was generally due north.
The line, in most of the maps, crossed no other waters
but the St John and its tributaries ; in others, it crossed the
Restigouche.

But, in every instance . . . that line crosses the
River St John and terminates at the Highlands in which
the nvers that fall into the River St Lawrence have
their sources ; in every instance, the north-west angle of

i.fc

804 BOUNDARY DISPUTES AND TREATIES

Nova Scotia is laid down on thow Highlands and when
the north line terminates ; in every instance, the High-
lands, from that point to the Connecticut River, di^e
the rivers that fall into the River St Uwience, from the
tributary streams of the River St John, and from the
other nvers that fall into the Atlantic Ocean.*

^Four maps published in London during the interval
between the signing of the preliminary treaty, November
1782, and of the definitive treaty, September 1783, showed
the same lines.

Respecting the line from Mars Hill, the United States
statement said : that so far from being a highland which
divided St Lawrence waters from Atlantic waters, it was one
hundred miles distant from any tributaries of the St Lawrence
and, from Mars Hill to the nearest source of the Penobscot,
It only divided two minor tributaries of the St John ; that
no highlands extended eastward from it to form the northern
boundary of Nova Scotia ; that, for one hundred and fifteen
miles in a straight Une— from Mars Hill to Metjermette
Portage— it nowhere divided waters falling into the St
Lawrence, and that only for some eighty miles, between
Metjermette Portage and the Connecticut, did it follow the
highlands of the treaty.

North-westernmost Head of Connecticut River.— The United
States statement aUeged that the geography of the upper
Connecticut was imperfectly known in 1783. Surveys under
Article V of the Treaty of Ghent showed four blanches with
their sources in the highlands, viz., Hall, Indian, Perry and
Main Connecticut. From its peculiar characteristic, the last
branch might be called Lake Stream. In 1783, the river
formed by the junction of Indian and Perry and Lake Streams
was known as the Connecticut River. The mouth of Hall
Stream was about two miles below this junction. It was a
quarter of a mile south of the ' old line,' but half a mile north
of the 45th parallel, as determined by later and more accurate
observations. The source of the middle branch of Hall
Stream was the north-westernmost head of the branches

» GalUtin, Right of tht United States to the North-eastern Boundary claimed
by Them, p. 78.

FROM FUNDY TO JUAN DE FUCA 8qs

above-mentioned, and it had accordingly been claimed by the
United States a* the north-westemmoet head of the Con-
necticut. On the other hand, the United Sutea commissioner,
under Article v of the Treaty of Ghent, had conceded that
the boundary-line, where it met the 45th parallel, must be
in the middle of the stream, which was, prior to the treaty of
1783, recognized as the main Connecticut River. It had been
shown that this argument was not conclusive, but, should it
prevail, the source of Indian Stream must be considered the
north-westernmost head of Connecticut River contemplated
by the treaty.

Forty-fifth ParaUd of North Latitude. — Reaptcting the
boundary between the Connecticut River and the St Law-
rence, the United States statement said that by an order-
in-coundl of July 20, 1764, the Connecticut River, between
the 45th parallel and the northern boundary of Massachusetts
Bay, was declared to be the boundary between New York and
New Hampshire. On August 13, 1768, this parallel was
confirmed as the boundary between New York and Quebec.
It had been surveyed between 1771 and 1774. It had ever
since been the basis of jurisdiction and grants of land, and
in 1783 it was established and in full force. Though the
Treaty of Ghent declared that the boundary between the
St Croix and the St Lawrence ' had not yet been surveyed,'
it was submitted whether it was not the true intention of
that treaty that the boundary should be surveyed only where
not already run, and marked, and whether the ' old line '
was not excepted from the provision directing the survey of
the boundary.

■/

Second British Statement

The second or definitive British statement, in the main,
presented a supplementary view of the British case.

In order to determine the true situation of the point of
departure, said the second British statement, the highlands
intended by the treaty must first be determined. Since in 1 783
a large part of the frontier territory was practically unex-
plored, it was impossible for the negotiators of the treaty to

r i

806 BOUNDARY DISPUTES AND TREATIES

deacribe the boundary with accuracy and predtion, but it
wai not impoHible to show their intent. They intended
(i) to define exdueively the limits of the United States ;
(a) to define them petemptorily ; (3) to define them in such
a manner as to pmmote the 'reciprocal advantage and
mutual convenience* of both onuntries. Such being the
animating motives, it was inconceivable tiiat tiie British
government could have intended to carry the boundary-line
north of the St John, thus losing not only a considerable
area, but surrendering the direct communication between
Nova Scotia and Canada. With respect to the question of
highUnds, it sufficed to quote, as to Man Hill, the statement
of the American surveyor that it was 'about looo feet above
the general level.' The question of the north-west angle was
subordinate to that of the highlands, and its position was
unknown in 1783. According to the United States, the
charter of Massachusetta Bay would place it on the right
bank of the St Lawrence, and the procbunation of 1763 and
the Quebec Act would place it, in certain hif^lands, south of
the St Lawrence, while the proposal of the United States
n^otiatora of 178a fixed it at the source of the St John.

So far as ancient provincial boundaries were concerned,
said the second British statement, the United States had
laboured to prove the identity of the due north line from the
St Croix to the Metis River with the boundaries between the
British provinces of Nova Scotia, Quebec and Massachusetta
Bay, but this was a mere matter of conjecture. If the
n^otiators had intended to adopt an existing line, they
might have defined it as a due north line from the StCrmz
to the southern boundary of Quebec Instead of adhering
to ancient boundaries, which might have prokmged the
negotiations indefinitely, they adopted a new line.

Respecting the maps submitted by the United States,
the second British statement crmtended (i) that these maps
were grossly in error, inasmuch as they indicated a line of
visible elevations, later found to be non-existent ; (2) that,
in some of them, the line of visible elevation intersected
waters of the St John, or of the St Lawrence, or both, thus
disproving any mtention to indicate it as dividing those

FROM FUNDY TO JUAN DE FUCA 807

wutrrB i (3) that the agreement provided that no mape but
Mitchell's and nup ' A ' were to be received as oulkorUy ;
(4) that nups were (X>pied one from another, so that coinci-
dc«oe did not signify additional evidence ; and (5) that the
selection by the negotiators of Mitchell's map, published
prior to the proclamation of 1763, materially contributed to
show that the line indicated on the later map* was not the
intended boundary.

The second British statement laid great stress on the
injury which would be occasioned to the British provinces
by allowing the American claim.

Respecting the 45th parallel, the second British sUtement
said that while the old Une ^mts onsidered accurate, in 1774
both governments had, prior to the Treaty of Ghent, received
information impugning its accuracy. The United States
had not made any objection to its rectification until it was
discovered that it would be injurious to American interests,
prindpally by the loss of the Rouses Point fortifications.

Second United States Statement

The second United States statement declared that the
question at issue was whether the highlands of the treaty
actually need not, as the British contention implied, for three-
fifths of their extent divide the rivers that were specified.
To support this extraordinary pretension. Great Britain had
appealed from the letter of the treaty to what was improperly
called its spirit. Even admitting that there was some founda-
tion for her position in regard to the terms 'Atlantic Ocean '
and ' highlands,' the hne claimed by her would still fail to meet
the requirements of the treaty.

The British statement had declared that, in 1782 and 1783,
the position of the north-west angle of Nova Scotia was
unknown, and that the negotiators had adopted boundaries
intended to give each government possession of the basins
of all rivers having their mouths within its territory. The
second United States statement contended that there were,
at the time of the treaty, certain and acknowledged boundaries
between Canada and Nova Scotia, and it was supposed that
VOL. viii a

8o6 BOUNDARY DISPUTES AND TREATIES

ths aioertiamiMnt of th* podtloa of the ' north-west angle '
WMameraopnmtkmofMirveying. The alleged intentioo of
the negotiaton waa dl^roved t^ the dediive fact that it
waa not adhered to with raq)ect to any other part c^ the
boundary; thus, along the 45th parallel, it intenected kkea
and streanu, leaving the upper waten in one country and the
lower waten in the other. All the inconveniencee with
napeet to navigation, or to a division, between the two
powers, ascribed by Great Britain to the boundary, so far as
it affected the St John, applied with greater force to the St
Lawrence and its basin. And, on the principle she assumed,
she might, with equal consistence and justice, have daimed all
the territory on the south of the St Lawrence and Great
Lakes.

Th0 ttrm 'AOohHc Oc«an:—AM to the term 'AtUntic
Ocean,' the seomd United States statement argued that the
words ' rivers which faU into the Atlantic Ocean ' necesMuily
embraced riven falling into its inlets, the Bay of Fundy
and the Gulf of St Lawrence, according to geographical
usage, to common language and to official documents. The
description of the St Croix, as having its mouth in the Bay
of Fundy, had been talnn from the grant to Sir William
Alettnder and tiie oommissicMis to the govemon of Nova
Scotia, and various British documents were cited to prove
that the term 'Atlantic Ocean' had been used so as to
include Massadiusetts Bay, Bay of Fundy. Gulf of St
Lawnmce and other bodies of water. As to the intent of
the negotiators, it was contended that the original proposi-
tion of the American oommissionere proved conclusively
that, thous^ the St John was stated to have its mouth in
the Bay of Fundy, it was classed as one of the riven falling
into the Atlantic, inasmuch as the northern boundary
divided St Lawrence waten ftom the riven 'which fall
into the Atlantic Ocean,' and the eastern boundary followed
the St John from its mouth to its source.

The term ' Highlands.'— Rtspfcting the term ' highlands,'
the second United States statement contended that the
name ' height of land ' was not peculiarly appliaMe to the
highlands between the Cormecticut and Kennebec and the

PROM FUNDY TO JUAN DE FUCA 809

St Lawrence ; and that the only lemblanoe of ground for
the luppoettion wai iti uae by Pownall; and Pownall,
Mackensie and othen were dted to prove thiit ' lands height,'
' height of land." height of the land ' am! ' highlands ' were
uaed lynonymoualy.

Tkt Madawasha FUif and 5atfMMN<.— Req)ecting the fief
of Madawatka, the eecond United Sutea statement denied
that a grant by the governor of New Ftanoe couid affect
the limits of Massadbusetts Bay, and oontendrd umxx r . tther
England nor France, in its grants of land, prid th^ sll. 'itr.i
respect to the claims or rights of the other It maintained
that no proofs had bem adduced that the i^'ush ou.< '.:<t«rs
of the fief had ever performed any of the com litif »'i9 ncuni»^''nt
upon the holder under feudal tenure, or diat icu of juris-
diction had been performed therein and tiiat tuac u^sr.tn.
transactions had occurred, but that e\ ry one i'liliic'eJ not
only the fief of Madawadca, but also other ian Is si.uauxl
within the acknowledged boundaries of the British ProviTi^i
of Quebec, and that some of the deeds included v >ucaulc
seigniory, known to be situated wUhoiU those bourdnr o.

Respecting the Madawaska settlement, the American
definitive statement claimed that it was not evidence that
New Brunswick, prior to the Treaty of Ghent, had exercised
jurisdiction in this area. It was settled by Acadians who
had moved there when British settlements were extended
to the vicinity of their original settlement on the Lower
St John. At that date the position of the due north line
waa unknown, and it was thuefore not until the survey of
1817-18 that exercise of jurisdictkm by New Brunswick
was protested. The British agent under the Jay Treaty
admitted that the due north line crossed the St Jdm, but,
later, as agent under Article v of the Treaty of Ghent, endea-
voured to explain it away. No daim to the territory had
been preferred by Great Britain until the Treaty of Ghent,
when her commissioners proposed a ' revision of the boundary-
line ' which would ' secure a direct communication between
Quebec and Halifax.*

8io BOUNDARY DISPUTES AND TREATIES

! I

AWABD OF THE KiNG OP THE NbTHBSLANDS

On January lo, 1831, the king of the Netherlands ren-
dered his award. He decided that the term 'highlands'
applied to land which, without being hUly, divided waters
flowing in different directions ; that tiie boundaries through
the Great Lakes, as defined in the treaty of 1783, departed
from the ancient provincial boundaries; that the Treaty
of Ghent stipulated for a new examination, which could not
be applicable to an historical or administrative boundary;
that, therefore, the ancient delimitation of the British pro-
vinces did not, either, form the basis of a decision ; that
the arguments deduced from the rights of sovereignty
exercised over the fief of Madawaska and over the Mada-
waska settlement could not decide the question, for the naaoa
that those two settlements embraced only a portion of the
territory in dispute; that neither the 'highlands' line
claimed by Great Britain nor that claimed by the United
States fulfilled the requirements of the treaty of 1783
respecting the division of the rivers ; and that the evidence
adduced on either side could not be considered as suffi-
ciently preponderating to determine a preference in favour
of either one of the two lines req>ectively claimed. He
therefore recommended a line of convenience.

The arbitrator's line coincided with the present boundary
from the source of the St Croix to the St Francis. It followed
the latter to the source of its south-westernmost branch,
thence due west to the southern watershed of the St Lawrence
—the line claimed by the United States— thence following
the United States line to the Me^ermette Portage, where
it united with the British line.

Resp cting the north-westernmost head of the Con-
necticut River, he decided in favour of the British claim.

Respecting the 45th parallel line, he adopted the British
contention, except that he recommended that the Rouses
Point fortifications and a radius of one kilometre shoukl
remain in the possession of the United States.

Out of the total area of about 12,000 square miles, about

!|--

FROM FUNDV TO JUAN DE FUCA 8ll

4100 square miles were awarded to Great Britain and 7900
to the United States. On January 12, 1831, Mr Preble,
United States minister at Tbe Hague, though without
instructions, protested the award on the ground that the
arbitrator had exceeded his powers. The question where
the boundary should run, said Preble, if the treaty of 1783
could not be executed, was one which, he believed, the
United States would submit to no sovereign. When the
arbitrator proceeded to say that it would be suitable to draw
an arbitrary compromise line, thus abandoning the boun-
daries of the treaty and substituting for them adi£Ferent
line, Preble said it became his duty to enter a protest, on
the ground that this decision constituted a ' departure from
the powers delegated by the High Interested Parties,'
and diat the rights and interests of the United States might
not be compromised by any presumed acquiescence on the
part of its minister.

The British government accepted the award, but notified
the United States government that it was willing to consider
modifications of the line for mutual convenience. The
United States government hesitated. President Jackson
was inclined to accept the award,^ but, doubtless, owing to
the opposition of Maine and Massachusetts, submitted it
to the Senate. The Senate withheld their assent, and recom-
mended 'the President to open a new negotiation ... for
ascertaining the true boundary.' The British government
offered to avail themselves of any chance of bringing the
dispute to a satisfactory settlement, but declined to connect
with it the question of tiie navigation of the St John. Mean-
while the United States government endeavoured to arrange
a settlement with Maine and Massachusetts. In return
for a surrender of her claim to territory north of the St John,
Maine was to be indemnified by lands in adjoining territory
and in Michigan. The negotiations, however, came to
naught.

On April 30, 1833, the Hon. E. Livingston, United
States secretary of state, wrote the British minister at

> ' Ka aftnwutU regretted that he had not done to ' (Moore, Tnatitt and
AtbOrationi, i. p. 138).

( !

, i I

8ia BOUNDARY DISPUTES AND TREATIES

Washington, proposing 'a new commission, consisting of
an equal number of commissioners, with an umpire selected
by some friendly Sovereign ... or by a commission entirely
composed of such men [experts], so selected, to be attended
in the survey and view of the country, by agents appointed
by the parties.' He further proposed that, if the due north
line would not reach the highlands of the treaty, ' then a
direct line . . . whatever may be its direction to such
highlands, ought to be adopted.' The British government
feared that this might pledge them to drawing the line to
the eastward, but Livingston explained that his proposed line
' would be carried to the left of the due north line, or west-
ward . . . upon a supposition that at a point some fifty
miles . . . westward ' of the head of the St Francis River,
highlands would be found that divided rivers falling into
the St Lawrence from rivers falling into the Atlantic The
British government, however, had no hope of reaching a
solution of the matter in this way. Sir C. R. Vaughan,
in a dispatch to Lord Palmerston, June 4, 1833, pointed out
that, as the negotiations with Maine in the previous year
had come to naught, the constitutional difficulties still
remained ; that, when Livingstcm pointed out his imaginary
line on the map, it might have been implied that ' it would
result in a more advantageous boundary to Great Britain,
than that offered by the due north line,' but that a later
conversation with M'Lane — ^Livingston's successor — with
a better map before them, indicated an intention to direct
the commission to explore in search of the highlands, thus,
possibly, placing Great Britain in a worse position than
by the arbitrator's award ; that it was not probable ' the
Americans will ever be brought to consent ' to drawing the
line to the sources of the Chaudi^re ; that insurmountable
constitutional difficulties ' restrict the President from treating
for a boundary more satisfactory to both parties than the one
suggested by the King of the Netherlands ' ; and that it
was hopeless to entertain the offer to negotiate, ' restricted
as the American government is, to an inadmissible basis.'

Further discussion demonstrated the impossibility of a
settlement that would be even as favourable to the interests

FROM FUNDY TO JUAN DE FUCA Stj

of Great Britain as the dedaion of the Idng of the Nether-
lands. In October 1835 the British government declared that
it was 'fully and entirely released* from its amditional
offer to accept the award of the arbitrator, and i»oposed
as the boundary the St John River from the due north
line to its source. The President made a counter-proposal
of the St John from its mouth to its source, provided Maine
would consent. Mr Bankhead, British chai^ at Washington.
' stated the impossibility, on the part of the British Govern-
ment, of agreeing to sudi a proposition.'

These negotiations have been referred to in detail, because
it has been populariy understood that, on this occasion.
Great Britain lost an opportunity to secure a very favourable
settlement. An examination of all the correspondence,
however, demonstrates the fallacy of this impression. At
no time was there My possibility of her securing even as
favourable a settlement as the award of the king of the
Netherlands. If the decision were more favourable to the
United States than the award had been, the United States
Senate might accept it ; if less favourable, its rejection was
certain. The Senate could not, and would not, coerce Maine,
and Maine would not give the federal government any con-
siderable latitude as a basis for a compnmiise.

President Jackson's endeavours to effect a settlement
before the close of his adnonistration were unsuccessful, and
the thread of n^;odations was taken up by his successor,
President Van Buren. Another attempt was made to do
what Great Britain had insisted was a necessary preliminary
to negotiations, viz., induce Maine to concede the principle of
a conventional line as a basis of settlement. The legislature
of Maine, impracticable as ever, refused to assent to any
concessions, and resolved that the United States should,
either alone, or in conjunction with Great Britain, survey
and mark the boundary-line.

In 1839 Featherstonhaugh and Mudge surveyed a part
of the disputed area for the British government. In their
report they took the ground that previous lines were erroneous,
and proposed a new one. They followed the description of
the western boundary of Nova Scotia as given in the grant to

814 BOUNDARY DISPUTES AND TREATIES

^r William Alexander. As already stated, this line followed
the St Croix from its mouth to the source of its west branch,
thence by a straight line to liie nearest tributary of the St
Lawrence. ' Such a course leads directly to the east branches
of the Chaudi&re, which are in the 46th parallel of north
latitude, and on the ancient confines of Acadia.' They said
that the Green Mountains divided in latitude 44° N, the
southern branch proceeding from the sources of the Connecti-
cut river in an east-north-easterly direction to Chaleur Bay
and passing south of the Aroostook, upper Tobique and
Restigouche. This, they claimed, was the ' axis of maximum
elevation ' and constituted the ' true Highlands intended by
the and article of the treaty of 1783.' The line from the
St Croix, however, intersected the * highlands ' line claimed
by Great Britain before it reached the highlands dividing the
waters of the River St Lawrence from those that ' fall into
the Atlantic'

In 1840-42 the United States expended $100,000 in
surveys and explorations in the disputed territory. The
report of their surveyors challenged the ' maximum axis of
elevation ' of Featherstonhaugh and Mudge. It was stated
to be represented by eminences separated one from another
by spaces of low country so extended as to preclude the idea
of a continuous range of highlands.

Frontier Strife

While negotiations proceeded, the authorities of Maine
and New Brunswick and settlers in the disputed area had
clashed on several occasions. In 1831 certain persons who
attempted to hold an election under the laws of Maine, in
the Madawaska settlement, were arrested by the New Bruns-
wick authorities. Though convicted, they were afterwards
released, on disavowal of their acts by the Maine authorities.
In 1836 a Canadian justice of the peace was arrested by
New Hampshire militia for attempting to execute process
in the Indian Stream territory. In 1837 an officer taking
the census for Maine in the Madawaska settlement was
arrested by New Brunswick authorities.

FROM FUNDY TO JUAN DE FUCA 815

In 1838-39 the so-called ' Restook War ' broke out. An
agent sent by the State of Maine to arrest British subjects
who were cutting timber in the Aroostook region was arrested
by the authorities of New Brun^ick. Maine raised an
armed ' civil posse ' and erected ' fortifications ' in the
territory.* The legislature of Maine appropriated $800,000
for military operations ; Congress authorized the president
to call out the militia and to accept 50,000 volunteers, and
voted $10,000,000 for purposes of war. The president,
however, dispatched General Scott to arrange a modus vivendi
with the British authorities. It was agreed that Great
Britain should remain in posseitioo of one part of the territory
and Maine in poweooion of the other, but that sodi poaaession
should not derogate from the claims ef t^ aoo-posaessing
party, and thsrt the military fosees of theStaeecf Maine should
be withdrawn. The Britiab authoritiaa carried out the
agreement, but the State of Maine sent, under tiae pretence
that it was a civil posse, an armed force of 300 men, who
erected a blockhouse on the St John River.

In March 1841 Daniel Webster sutxeeded Jc^m Forsyth
as United States secretary of state. He had from the first
viewed the chances of a settlement as hopeless unless there
was an entire change in the manner of proceediog. During
the summer of 1841 he informed Fox, British minister at
Washington, that the United States government was willing
to compromise the dispute by agreeing to a conventional line.
This offer was communicated to the British government, and
Lord Ashburton was sent with full powers to settle all disputes
between the two countries. Ashburton was a son of Sir
Francis Baring, the founder of the noted banking firm.
Baring Bros, and Co. He had always been friendly to the
United States and had married a daughter of Bingham of
Philadelphia.

Lord Ashburton arrived in Washington on April 4, 1842.
In the preceding month the legislature of Massachusetts had
adopted resolutions declaring that the boundary could be
easily defined in accordance with the treaty of 1783, and that

' Webster wrote : ' There was Fort Fairfield, Fort Kent, and I I:uow not what
other fortresses, all memorable in history ' {iVebster'^ 1^'orki, v. 93).

VOL. VIII S

8i6 BOUNDARY DISPUTES AND TREATIES

no oompranise could be made without the aiaent of Maine
and MaaMdiuwtts. The legislature of Maine alao adopted
reaolutiona that did not form a hopeful ban* for negotiationi.
In ratponae to an invitation from Webster both states sent
ooramisrioners to represent them in the negotiations at
Washingtcm. Oa June 31 Lord Ashburton offered to accept
as the boundary the Sc J<^n River from the due north line
to one of Its sources, except that the line should be so drawn
as to include the Madawaska settlements on the south bank
of the St John. He offered to concede the strip between the
' old line ' and the true 45th paralld and also the tmrestticted
privilege of floating timber down the St John River.^ The
Mame commianoners re{riied that, to permit free communica-
tion between the British cokmies, they were willing to con-
cede the St John River to three miles above the mouth of the
Madawaska ; thence, about west-north-west to the southern
waterdied of the St Lawrence. On July 1 1 Lord Ashburton
replied that this line was wholly inadmissible, and suggested
to Webster that tiie negotiations ' wouki have a better chance
of success by omference than by correspondence.'

Three mimtiui had passed in fruitless negotiations, and it
was evident tiiat, if a settlement was to be arrived at. Lord
Ashburton's vaggfindcn must be adopted. Ashburton and
WebstM-, therefore, abandoned written communications and
adopted the plan of conferences. On July 29 Lord Ashburton
signified his assent to the agreement as set forth in Webster's
tetter of the 37th — ' being the final result of many conferences
we have had on this subject.' It provided that the boundary
should f(^k>w, from the source of the St Croix to the St John
River, tlw due north line as surveyed and marked in 1817-18 ;
thence up die deepest channel of the St John to the mouth of
the St Francis River ; th«ice up the St Francis to the outlet
of Lake Pohengamook ; thence south-westerly in a straight
line to a point on the north-west branch of the River St John,

* On }aiM 28 WMMter wrote Edward Everett, United States minister at
London, that ' our movemaat for the lait ten days, if any has been made, has been
lather backward. Th« boan<tary bosineas it by no means in a highly promising
■tatA— so many difficultiaa arise, not only between ns and England, but between
us and the commissioners, and the commiasiooerB of the two States themsslves '
(Curtis, Lif* of DtmM WAtUr, ii. p. loj).

FROM FUNDY TO JUAN DE FUCA 817

which point should be toi miles distant from the main branch
of the St John in a straight line and in the nearest direction ;
but, if the said point should be found to be less than seven
miles from the St Lawrence watershed, then the said point
should be made to recede downstream to a point seven miles
in a straight line from the watershed ; thence in a straight
line in a course about 8 8* w to the point where the parallel
of 46* 35' intersects the south-west branch of the St John ;
thence southerly by this branch to the source thereof in the
hig^ilands at the Metjermette portage ; thence along these
hig^ilands to the head of Hall Stream ; thence down the
middle of this stream till it intersected the ' old line ' surveyed
by Valentine and Collins ; thence west along this line to the
lUver St Lawrence.

On July 15 Webster communicated these terms to the
commissioners for Maine and Massachusetts, as the best
terms that could be obtained. He stated that the disputed
area contained 12,027 square miles. Of this Great Britain
would receive 5013 square miles and the United States
7015 square miles — 893 square miles less than was awarded
by the King of the Netherlands— but he pointed out that
the seven-twelfths awarded to the United States was ' equal
in value to four-fifths of the whole.' In addition. Great
Britain was willing to concede to the United States the right
to float timber down the St John River, free of all discriminat-
ing tolls, the same right being conceded to British subjects
on the upper St John, with reference to timber cut in the
portion of the upper St John basin awarded to Great
Britain.

This arrangement conceded to the United States the
territory at the head of the Connecticut, 145 square miles,
and the narrow strip between the 45th parallel and the ' old
line,' 63 square miles. These territorial concessions, how-
ever, enured only to the benefit of New Hampshire, Vermont
and New York. To compensate Maine and Massachusetts
Webster proposed that the United States should pay them
$350,000, to be equally divided between them, and should
reimburse them for expenditures for surveys of the boundary
and for the civil posse. To these terms, with the addition of

I !

8x8 BOUNDARY DISPUTES AND TREATIES
150,000 to the compenaation, the commiMionen of the two
•totee finaJIy a-ented. The treaty wa. «gned at WmJJ
Mgtoit on August 9, 1843.

Article i defined the boundary in accoidance with the
agreement between Lord Aahburton and Daniel Webster

thelTjoSn'ifv^n '"" '^ """"^ "^^ *° ^* ^"^ ^

Other articles validated all grants of land made by either

government m the disputed areas; and provided for Ae

sui^yingandmarlangof the whole line ; for the distribution

rec«ved by New Brunswick on account of timber cut in the
dwputed wea. and for the payment to Maine and Massachu-
setts of J300.000 m equal moieties. With teganl to the

SiT" °M** T^7 ^""*'' Lonl AshbuJton repUed
that he could not ' with any propriety be a party ' to an
agreement of this nature. Webster, however, satisfied Lord

kT.,!!!;^"^^ *^!"? ^* '°™^ diplomatic notes should
be exchanged, explaimng that this article contained nothing

SStt BriL ~"^*^ " P'*^^ «.ponsibility upoj
In both countries the treaty was severely critidred. In
Ae Umted States Senate, Senator Benton a'ccused Websto
of 'victmuang that deserted and doomed State/ MatoT
Respecting lx,rd iUhburton's claim for the bound^."

^Tc^rio^" ^™" ^'^ '' ^ * '^^ '^'^ ^>^f»^

h.J^ ^'^^ •?'?*^" Lord Palmerslon styled it ' Loitl Ash-
burton s capitulation ; he recommended that he reodve
a new title, • Eari Surrender.' and stigmatizi himT' J
most unfit person for the mission upon which he had been
sent. ~»~«

The treaty was ratified by the Uaitsd States Senate.
August ao and was duly carried into effect. In liij
S^"'^J'i>^.'.?"*='™" ^*~"rt and Alben Smith w2J
appomted Bntish and American commi»«one,s respecti^
to survey and monument the boundary. On Tune^ i8a7
they Mgned their final report at Washi^ton ^^'

FROM FUNDY TO JUAN DE FUCA

819

' Battle op the Maps '

Before diacuMing the advantages or disadvantages that
accnied to Great Britain by this settlement, commonly
known as the ' Ashburton Treaty/ it is necessary to review
the wordy warfare called the * Battle of the Maps.'

(i) What is commonly known as the ' Red Line ' map.
When the treaty was under discussion Webster submitted
a copy of this map to the Senate. Though no maps were
attached to the treaties of 1783 and 1783, the negotiators
of the treaty of peace had before them a copy of Mitchell's
map of 1755, and it was assumed during all later negotia-
tions that, if found, it would be conclusive. In the winter
of 1840-41 Jared Sparks, an American, in making some
researches in the archives of the Affaires itrangbres at Paris,
found a letter of December 6, 1783, from Benjamin Franklin
to the Comte de Vergennes, the French minister of Foreign
Affairs. It was as follows :

' I have the honour of returning herewith the map your
excellency sent me yesterday. I have marked with a strong
red line, according to your desire, the limits of the United
States, as settled by the preliminaries between the British
and American plenipotentiaries.'

Sparks immediately made a search among the 60,000
maps in the archives, and found a map of North America
by d'Anville, 1746, with the boundary marked as indicated
by Franklin, drawn in red, apparently with a hair-pendl
or a very blunt pen. The map was about eighteen inches
square and the line was drawn completely round the United
States. Near the 45th parallel it was so drawn as to give
the United States more than the treaty gave, but in Maine
it passed south of the St John River and conceded to Great
Britain rather more than her claim. On February 15, 1843,
Sparks, who seems to have kept the discovery to himself,
' wrote to Webster sending him a copy of the map and
giving his ideas on the subject.' ^ In May Sparks, as the
result of a conference with Webster, showed the ' Red Line '

> Mills, ' Britiah Diptomacy knd Caiwda,' Unilid Empin, U. p. 703.

Ill

Sao BOUNDARY DISPUTES AND TREATIES
and 'Steubn' iniifi to the govenor of Maine. JudM
Spngue. oa Webeter'e behdf, endeevourad to iatSnoi
prominent memben of the Maine legidatura. Aa a nault
the OMuniidoow w«e appointed with full powen.

The mapa, wrote Sparka to Everett on January ml
1843. after the whole natter had become known. • had aome
influence !n procuring a favourable actkm on thia point 1
and it ia generally conceded that the treaty woukl not have
gakied the aaaent of the Maine Comnii«k>nera if theae mapa
had not been laid before them.' On June 14, 184a, Wdbetw
wrote Everett, requesting him to 'forbtor to pnss ik» starch
(tfttr maps in England or ststwksrt. Our atrength ia on
the letter of the treaty.'

On August 17 the United Sutes Senate debated the
treaty m secret session. Senator William abeU Rivea.
whohadchaigeof it. exhibited the 'Red Line 'map. In
luging ratification he declared that ' there was great danger
Aat our case wouW be weakened by new evidence. Here,
he intooduced the subject of the Franklin map, and saki

that, if the matter were to go to a reference again, thia might
be insisted on as evulenoe to the damage of the American
alarms. > Senator Benton objected to 'the aolemn and
mystenovs humbuggery by whkh Dr Franklin had been
made to play a part in ravishing this ratification from
?"IJi'*"' •»«* to the 'awful apparition of the dis.
interred map shown to ahrm aenatma into ratificatkm.'
Though several adverK propositkms were put forward,
the treaty was ratified by thirty-nine to nine. Webster was
successful, and differences that had on several occasions
brought two great natkma to the verge of war were lakl
to rest

When, through the publicatkm of the Senate debates,
the UK made of the map by Webrter became known, he
waa bitterly assailed for 'over-reaching' Lord Ashburton.
Webster, m a speech before the New Yoric Historical Sodety
said that it waa the duty of thr TV.Jted Statee government
to lay before the Maine and M^j; Mdiusetta oommisskmen
all the mformation in its power.

» Cnito, Ufa of ITiiKir. U. pp. 139^

FROM FUNDY TO JUAN DE FUCA 831

Every office in WMhington wu nuiMcked, eveiy book
of authority ooowlted, the whole history of all the
ncfotiatioiia, from the Treaty of Paris downward, was
produced, and, among the rest, diis discovery in Paris
to go for what it was worth. ... I must confese that I
dianot think it a very urgent duty, on my part, to go to
Lord Adiburton and tell him that I had found a bit of
doubtful evUlence in Paris, out of whidi he mig^t, per-
haps, make something to the prdudice of our claims,
and from whidi he could set up hii^er daims for himsdf,
or throw fitrdier uncertainty over the whole matter.

That exhibiting the map to the Maine and Massachusetts
commissioners and to the Senate brought about the ratifi-
cation of the treaty is induUtable. That Webster accepted
the map as authentic, and that he was much alarmed lest
its existence should become known to the British govern-
ment, is also beyond doubt.

In these days, when the matter is of academic interest only,
calm judgment indicates the value of the map as evidence
as nil. There was no oHinection between the map and the
letter ; no note on llie latter to indicate that the accompany-
ing map was in the archives ; a red line such as was indicated
on the map oouki have l>eat drawn by any one, at any time ;
to assume that Franklin, one of the ablest men that the
American colonies had produced, would draw such a line
was to credit him with incredit^ stupidity and ignorance
respecting the acts of sUte, maps, etc., of the previous
twenty years. Finally, Sir Robert Peel, in the debate of
Mardi 31, 1843, stated that the British government had,
prior to Lord Ashburton's n^otiation, found at Paris the
famous map. He said : ' There can be no doubt but that it
is the map referred to by Mr Jared Sparks ; but we can trace
no indication of connexk>n between it and the dispatch of
Dr Franklin.'

The copy used by Webster has disappeared from the
United States department of State, and the original seems
to have disappeared from the Frendi Archives.

(3) The ' Steuben ' map above referred to was a copy
of Mitchell's map found by Webster early in 1843. It had be-
kmged to Baron von Steuben, who had assisted the Americans

••aocory nsowtion tbt chait

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I- '

822 BOUNDARY DISPUTES AND TREATIES

during th'- iVar of Independence. It showed the boundary
according to the British claim, but as Steuben had no con-
nection with the negotiations nor any offidal status in the
United States, it is of no importance.

(3) The 'Jay* map was discovered early in 1843 and
was communicated to Gallatin by William Jay, son of John
Jay, one of the United States negotiators of the treaty of
peace. After the death of John Jay it had remained in
the possession of another son, Peter A. Jay. It showed the
boundary-line as following the St John River to the mouth
of the Madawaska; thence up the Madawaska to its
source ; thence by the highlands and 45th parallel to the
St Lawrence. On it was a red line 'designated through
its whole extent as being Mr Oswald's line.' Gallatin
claimed that it demonstrated the baselessness of the British
c dim, and that it was forwarded by Jay in October or
November 1782 to Livingston, the United States secretary
of state. The only basis for such a statement is a letter
from Franklin, October 14, 1782, mentioning that the articles
of the treaty would be sent by Jay at the first opportunity,
but containing not a word about a map. Again, in 1797,
only fifteen years after the treaty was concluded, Jay made
an afiidavit respecting his knowledge of the negotiations,
and particularly with reference to maps.^ Gallatin's ail-
ment is reduced to an absurdity, and his assumption that
the map demonstrated the identity of Mitchell's ' Medousa
Lake ' and ' Nipissigouche ' with the ' source of the St John,'
claimed by the United States Congress, rests upon an exceed-
ingly slight foundation.

(4) Ihe United States department of State map. Judge
Benson, in his report to the president, as one of the com-
missioners appointed imder Article v of the Treaty of Ghent,
stated that the agent for the United States, James Sullivan,
had offered in evidence 'a Map of Mitchell, as the Identical
Copy which the Commissioners had before them at Paris,
having been found deposited in the Office of the Secretary of
State for the United States, and having the Eastern Boundary
of the United States, traced on it with a pen or pencil.'

• Supra, p. 761.

k i

FROM FUNDY TO JUAN DE FUCA 823

In November 1828 Gallatin, who was engaged in prepar-
ing the statement of the United States for submission to
the king of the Netheilands, examined at the State depart-
ment a Mitchell map stated to be the identical map in
question. There had been traced on it, ' originally with a
pencil and over it with a pen, the boundary of the United
States in conformity with their claim.' ^ There was nothing
to show that it was the map produced by Sullivan, and
Gallatin decided it would be doing injury to the United
States claim ' to attempt to support it by any equivocal
or disputable evidence.' Between 1828 and the eighties,
when John Jay addressed inquiries to the State department
respecting it, tiiis map — ^like the American ' Red Line ' map
— disappeared from the department of State.

(5) King George iii's map. The British Museum also
possesses a ' Red Line ' map, but, unlike its famous proto-
type, it is of undoubted authenticity and of great interest.
It is a copy of the Mitchell map, 1755. It hung in the library
of King George ni, and, with otiier books and maps, was
donated to the Museum by his successor. The writer has
in his possession another copy of the Mitchell map coloured
in facsimile of the king's, and has also had ample oppor-
tunity to study the original. The results of the study are :

(a) It is not, as stated by Moore and others, the veritable
copy of Mitchell's map used in the negotiations of 1782 ;

(b) it does not contain ' Oswald's line ' upon it ; (c) it was a
map of reference used by King George iii, doubtless in con-
nection with discussions with his ministers respecting North
American affairs ; (<0 the red line on it is designated ' Boun-
dary as described by Mr Oswald,' practically demonstrating
that the line was drawn under Oswald's direct supervision.

Edward Everett, in a dispatch of March 13, 1843, states
that there is a line on it, ' drawn with care with an instru-
ment, from the lower end of Lake Nipissing to the source
of the Mississippi . . . and has since been partly erased.*
As a matter of fact, there is no ' partiy erased ' line from the
lower end of Lake Nipissing westward. There is a line south-
eastward to where the 45th parallel strikes the St Lawrence —

* Gallatin, Memoir on tht North-easUm Boundary, p. 48.
VOL. vni T

(

824 BOUNDARY DISPUTES AND TREATIES

part of the boundary of Quebec by the proclamation of
1763— and it was ' partly erased ' when the boundaries were
altered by the Quebec Act, 1774. The foregoing, and the fact
that boundaries by the Treaty of Utrecht and other infonna<
tion are indicated, prove oondusively that it was not the map
used in 1783.

This map shows the line as claimed by the United States,
but it is only fair to Lord Ashburton to say that on April 28,
1843, he wrote Webster that

The map question now fortunately only interests
historians. ... I should have some curiosity to know
how you unravel this, to me, inextricable puzzle ; at
present I will onl^ sav, what I know you will believe,
that the discoveries here are quite recent, and were
^olly unlmown to me when 1 was at Washington.
Not but that I agree entirely with you, that it would
have been no duty of mine to danu^e the cause of my
dient, yet, at the same time, I perhaps went further in
protestations of ignorance than I otherwise should have
done.

(6) The Record Office map. This is a copy of Mitchell's
map, described in the catalogue as the map used by Mr Oswald.
* This map was found in 1841, by Mr Lemon, but there is
nothing on the map itself, nor does any documentary evidence
exist, to support the statement in the Catalogue, which rests
upon the ipse dixit of Mr Lemon. The "red line" is very
faint, and the geographers who were consulted on the age of
it were divided in their opuiion.' *

The foregoing are the principal map evidences produced in
this more or less noted ' battle.' Summed up, they prove
that in 1782 and 1783 the government of Great Britain
understood that the boundary followed the southern water-
shed of the River St Lawrence from its intersection with the
due north line to the Connecticut River ; that during the
n^iotiations little attention was paid to the division of the
inland territory forming the disputed area of a later time ; and
that the British government in 1814, when proposing a rectifi-
cation of the frontier, believed that it was a simple matter of

« Fitmukuiice, Th$ Lift of WiUi»m, Earl ofSMbunu, iii. p. 384.

FROM FUNDY TO JUAN DE FUCA 825

exchange. The title of Great Britain to any portion of the
disputed territory, therefore, rested largely upon occupation.
The one exception was the portion of the upper Restigouche
that would have been cut off by the due north line if the
latter were extended, as claimed by the United States, to the
sources of the Metis. This was always a weak point in the
American contention which would have been strengthened
by frankly abandoning the claim to any portion of the
Restigouche basin, and adopting a line following the watershed
of the latter to the point at which it intersected the southern
watershed of the River St Lawrence.

National Rights thsough Occupation

R^arded as an academic question, the national rights
acquired by occupation are admirably set forth in a dispatch
of Lord Salisbury's of May 18, 1896. In discussing the
proposed general treaty of arbitration he says :

There are essential differences between individual
and national rights to land, which make it almost im-
possible to apply the well-known laws of real property
to a territorial (uspute.

Whatever the primary origin of his rights, the national
owner, like the individual owner, relies usually on
effective control by himself or through his predecessor
in title for a suffiaent length of time. But m the case
of a nation, «^at is a suffide-Al length of time, and in
iK^t does effective control con^st ? In the case of a
private individual, the interval adequate to make a valid
title is defined by positive law. There is no enactment
or us^e or accepted doctrine which lays down the length
of time ret^uired for international prescription ; and no
full definition of the degree of control vhich will confer
territorial property on a nation, has been attempted.
It certainly does not depend solely on occupation or
the exercise of any clearly defined acts. All the great
nations in both hemispheres claim, and are prepared to
defend, their right to vast tracts of territory vrbidi they
have in no sense occupied, and often have not fully
explored. The modem doctrine of ' Hinteriand,' with
its inevitable contradictions, indicates the unformed and

8a6 BOUNDARY DISPUTES AND TREATIES

unstable ronditioa of international law as i4>pUed to
territorial claims resting on constructive occupaticm or
control.

^ce the above was written the Venezuela arbitration has
practically enunciated the principle that thirty years' adverse
possession constitutes a good titie.

In the Madawaska fief Great Britain and her predecessor
in titie, France, had a seigniory granted in 1683. In the
Madawaska and Aroostook settiements grants had been made
by the New Brunswick authorities, and Great Britain had
exercised jurisdiction in pOi-tions of the disputed area since
about 1785. The Madawaska settiement extended up both
banks of the St John to the mouth of the St Francis, and the
highway from the Maritime Provinces to Quebec foUowed
the St John and Madawaska Rivers. The authorities of
Maine endeavoured to strengthen their claim by possession
and jurisdiction, particularly in the area south of the St John.

So far as the intent of the negotiators was concerned, it
is unquestionable that they intended to define the boundary as
following, between the Bay of Fundy and the Connecticut
River, the western boundary of Nova Scotia and the southern
boundary of Quebec. In drafting the treaty they, un-
fortunately for Canada, followed the description of the
boundary of Nova Scotia as defined in the commissions to its
governors, instead of the grant to Sir William Alexander.

Results op the Ashbubton Treaty

Summing up the results of the Ashburton Treaty, it is
evident that, in the north-eastern portion of the territory.
Great Britain got all that she could claim by virtue of posses-
sion, and more ; that, she obtained much more than she could
claim under the letter of the Treaty of Paris ; and that she
obtained nearly 900 square miles of territory in the basin of
the upper St John over and above that awarded by the king
of the Netherlands. She conceded an area of 150 square
miles in the basin of the upper Connecticut River. She also
conceded a strip between the 45th parallel and the ' old line '

FROM FUNDY TO JUAN DE FUCA 827

with an area of 73 square miles, but, as the ' old line ' is in
iriaoes south of the 45th parallel, lUie received, east of St
Regis, a strip containing I iK aQuare miles. So far as these
' stripe ' were concerned, the United States and Great Britain
had valid titles by virtue of occupation, and the concessions
were simply validations. In addition to the foregoing the
Ashburton settlement ended a controversy that had disturbed
the relations of the two countries for nearly sixty years:
that had, on several occasions, brought two great nations to
the verge of war ; and that had seriously interfered with
commercial intercourse. Finally, it is worthy of note that
the commission appointed to adjust the respective claims of
New Brunswick and Quebec to the area west of the ' due
north line' awarded to Great Britain by the Ashburton
Treaty, reported in 1848, six years later, ' that a tract of
countiy lies between the north highlands westward of the
due north line, and the line of the United States, which,
according to the strict legal rights of the two provinces, belongs to
neither, . . . and which, in 1763, formed part of the ancient
territory of Sagadahock.' This ' tract of country ' was con-
firmed to Great Britain by the Ashburton Treaty.

Article in of the International Boundary Treaty of
April II, 1908, provided for repairing and renewing the
monuments erected under Article vi of the Ashburton Treaty,
and for marking the line through waterways by buoys,
monuments and ranges. The surveys and monumenting
under this article are now (March 1913) completed from the
St Lawrence to Hall Stream, r<^d from the St Croix to the
St John. The St John and St Francis Rivers have been
surveyed and reference monuments placed. Between the St
Francis and Hall Stream work is now in progress.

' M

Thkough the St Lawsbncb Basin to
Lake op the Woods

From the point where the 45th parallel of north latitude
' strikes the River Iroquois or Cataraquy ' (St Lawrence) the
boundary, as defined in the treaty of 1783, follows ' along the

ilii

828 BOUNDARY DISPUTES AND TREATIES
middle of said river into Lake Ontario, through the middle of
said lake untU it strikes the communication by water between
that lake and Lake Erie; thence along the middle of said
communication into Lake Erie, through the middle of said
lake until it arrives at the waterH»mmunication between
that lake and Lake Huron ; thence atong the middle of said
water-communication into the Lake Huron; tiience through
the middle of said lake to the water^ommunication between
that lake and Lake Superior.'

Through the St Lawrence and Great ic*«.— Article Vl of
the Treaty of Ghent recited the forc^ing, and provided that
whereas doubts have arisen what was the middle of the said
River, Lakes and Water communications and whether certain
Islands lying in the same were witiiin the Dominions of His
Bntannic Majesty, or of the United States : in order, there-
fore, finally to decide these doubts, they shall be referred to 2
CommissionerB ' to be appointed in the same manner as those
commissioned under Article v. It furtiier provided that tiiey
should designate tiie Boundary ' tiirough tiie said waters
and decide the tide to each of the islands included therein,
such designation to be final ; in case of disagreement, a refer-
ence to be made to a ' Friendly Sovereign or State.'

John Ogiivy, of Montreal, was appdnted as commissioner
on the part of Great Britain, and Peter B. Porter of New
York State on the part of tiie United States. On September
28, 1819, OgUvy died at AmherstbuiTg, of fever, and was
succeeded by Anthony Barclay, a son of Thomas Barclay,
British commissioner under Article v. On May 26, 1817
Samuel Hawkins presented his credentials as agent for the
United States. On May 7, 1821, he was succeeded by
Joseph Delafield. On June i, 1818, John Hale presented his
commission as British agent.

The initial meeting was held at Albany, November 18,
1816. On November 12, 1821, at a meeting held in New
York dty, the surveyors reported that the maps of the whole
Ime were ready for inspection. On June 18, 1822, the com-
missioners reached an agreement.

The basis of division of the islands is set forth in a letter
by David Thompson, the famous surveyor to the North-West

FROM FUNDY TO JUAN DE FUCA 829

Company, and attrcMiomer and surveyor for Great Britain.
He aays that

When the survey was undertaken to decide the place
of the above boundary line, several important questions
arose not contemplated in the Treaty ; amone yAiidi was
that, as the middle of the River is a line equidistant from
both banks of the River, this line would often intersect
islands, which would give a boundary line on land, under
circumstances very inconvenient to each Power, especi«
ally on civil and criminal processes, illicit trade, etc. etc.
It was therefore determined that to whatever Power the
greater part of an intersected island should belong, that
power should have the whole of the Island.

Thompson had made surveys of the greater portion of
Western Canada and had found that the deepest channel
was usually much nearer the north side of rivers. When the
survey was completed the United States commissioner con-
tended for the deepest channel, but Barclay insisted on the
letter of the treaty. The British Admiralty desired that
Wolfe Island, opposite Kingston, be obtained. If it passed
to the United States, fortifications could be erected on it that
would threaten the British navy yard and forts. Barclay
was successful in obtaining Wolfe Island in exchange for
Grand Island, above Niagara Falls, and Bamhart and other
islands, near Cornwall. It was also ' agreed that the boundary
line should be 100 yards from the shores of all islands, and if
the space between the opposite shores was less than 300 yards,
then the boundary line should be the middle between the
two shores.'

In addition to the questions that arose respecting the
assignment of the islands, there were di£ScuIties respecting the
navigation of the boundary waters. In the autumn of 1821 it
was proposed to the commissioners that they make with their
final award a declaration that they had acted on the principle
that the navigation of all waters traversed by the boundary
should continue free and open to the citizens of both powers,
irrespective of the course of the awarded line. The British
minister at Washington, however, declined to sanction it on
the ground that it would impugn what was a matter of right.

(

830 BOUNDARY DISPITES AND TREATIES

Tlie award deacribed the line in detail, and was aooom*
panied by • series of maps on which the boundary«line was
marked. After describing it through the River St Lawrence,
it defines it as passing ' to the south of, and near, the islands
called the Dudes, to the middle of the said lake [Ontario] ;
thence westeriy, along the middle of said lake, to a point
opposite the mouth of the Niagara River ' ; thence through the
Niagara River to Lake Erie ; ' thence southerly and WMteriy,
along the middle of Lake Erie, in a direction to enter t£e
passdge immediately south of Middle Island ' ; thence through
Detroit River and Lake and River St Clair to Lake Huron ;
' thence through the middle of Lake Huron, in a direction to
enter the strait or passage ' between Drummond and Cockbum
Islands ; thence south and west of St Joseph Island to the ' foot
of the Neebish Rapids.'

In 1836 the same oommissioners, Barclay and Porter,
acting under Article vil of the Treaty of Ghent, disagreed
respecting the division of the islands in the St Mary River
above St Joseph Island. The matter remained in abeyance
till 1843, when Lord Ashburton and Daniel Webster were
endeavouring to conclude a settlement of differences. On
July 16, 1842, Loru Ashburton wrote Webster that he desired
a clause inserted in the treaty providing that British vessels
should have equal rights of navigation with United States
vessels in certr>m channels of the St Lawrence and St Clair
Rivers. Webstei accepted and stipulated for similar privi-
leges for United States vessels in the British channel east
of Bois Blanc Island in the Detroit River.

Article vii of the Ashburton Treaty provided that

the channeb in the River St Lawrence on both sides
of the Long Sault Islands and of Bamhart Island, the
channels in the River Detroit on both sides of the island
Bois Blanc, and between that island and both the American
and Canadian shores, and all the several channels and
passages betwesn the various islands lying near tiie
junction of the River St Clair with the lake of that name,
shall be equally free and open to the ships, vessds, and
boats of both parties.

In 1850 the government of the United States repre-

t I

FROM FUNDY TO JUAN DE FUCA 831

tented to the Britiih govenunent that it wu desirable that
a lighthouse should be etected in Lake Erie near the mouth
of the Niagara River, but that the nuMt eligible site— a
•mail reef, known as Horseshoe Reef— was British territory.
Great Britain, therefore, ceded to the United Sutes such
portion ' as may be found requisite for the intended l^^t*
house.'

BovMDAKT raoM Lakb Hvxon to thb Noktb-Wbst
Angle of Lake of the Woods

Article vii of the Treaty of Ghent provided that, as
soon as the commissioners appointed under Article vi t id
executed the duties assigned to them, they should proce^xl
to determine the boundary 'from die water-communica-
tion between Lake Huron tJid Lake Superior, to the most
North-western Point of the Lake of the Woods,' to decide
the ownership of several islands lying in the boundary
waters, and to survey and mark portions of the boundary.
It further provided for reference to an arbitrator in case of
disagreement.

As soon as Barclay and Porter had concluded their award
under Article vi on June 18, 1822, they instructed the sur-
veyors to proceed with the surveys required under Article vu.
The surveyors were instructed to ascertain the position of
the ' Long Lake ' of the treaty of 1783, or, if no lake of that
name were found, to determine the chain of waters supposed
to be referred to under that name ; if no stream discharging
the waters of Lake of the Woods into Lake Superior were
found, they were to determine the streams that approxi-
mated most nearly to the line defined in the treaty. Surveys
were made of the waters between Lake Huron and Lake of
the Woods. In October 1824 it seemed likely that Pigeon
and Rainy Rivers would be adopted as the boundary between
the estuary of the former — assumed to be Long Lake — and
Lake of the Woods, but the British commissioner ordered
surveys of the route by way of the St Louis River which
falls into Lake Superior at the site of the present dty of

VOL. VIU V

83a BOUNDARY DISPUTES AND TREATIES

Dulutii, and the United Statea coouniMioaer ordered an
exploration of the Kaminittikwia, whidt emptiea into Lake
Superior at Fort ^K^lliam.

The oonu^<Mioneri were unaUe to readi an agreement
napecdng two points of difference. In the St Mary River,
between Lakes Huron and Superim', tiiey disagreed respect-
ing the assignmeit of St George (Sugar) Island. Barchy
claimed it on the ground that, when dividing the islands
under Article vi, the)' had agrwd that when a middle line
between the two shonv divided an island into two unequal
parts, it should be assignM to the nation to whose side die
larger portion lay. Porter claimed it mainly on the ground
that the navigable diannel lay between it and the Canadian
mainland. As Porter aeened to attach great importance
to navigation Barclay offered, if St George Island were
assigned to Great Biitain, to stipulate that the channel
east of it should remain free and open to both nations, pro-
vided Porter would make a similar stipulation respecting
the St Lawrence diannel near Barrhart Island and the
American channd in the St Clair River. Porter rejected
the offer.

By Article vi of the Ashburton Treaty St George Island
was conceded to the United States. It is worthy of note
that, owing to improvements, the channel west of St George
(Sugar) Island— and, therefore, altogether in United States
territory — is now used by all vessels except an occasional
small cmft.

The second point of difference was the line from Isle
Royale in Lake Superior to Lake of the Woods. Barclay
claimed that the boundary should run from Isle Royale
south-westeriy to the head of the lake, thence by way of
the St Louis and Vermilion Rivers to the Grand Portage
canoe route, and thence by the latter to Lake of the Woods.
Porter contended that the line should follow the Kaminis-
tikwia canoe route to its junction with the Grand Portage
route, and thence by the latter to Lake of the Woods.

The treaty of 1783 defined the boundary as passing
' through Lake Superior, northward of the Isles Royal and
Phelipeaux, to the Long Lake ; thence through the middle

FROM FUNDY TO JUAN DE FUCA 833

of mM Long Lake, and the water-oommunication between
it and the Lake of the Wood* to the eaid Lake of the
Woods.' Barday daimed the St Louis River on the folk>w>
ing grounds:

(i) That the treaty definei the boundary as running
' through Lake Superior ... to the Long Lalce ' instead
of following the wording used with reference to the other
Great Lakes, vix., ' through said lake to and through the
water-communication into the Uke,* etc. It was. therefore,
evident that the lake described in the treaty immediately
united with Lake Superior without any contracted separa-
tion. St Louis River answered this description since it
contained a lake-expansion at its mouth, whereas Pigeon
River emptied into a bay.

(2) That it was an ancient commercial route. While
Pigeon River also possessed this qualification, the only lake
of the Pigeon River route answering to the description of
' Long Lake ' was Crooked Lake, an expansion in the upper
waters of Rainy River. The Kaministikwia route was a
comparatively new one, and Dog Lake, claimed by Porter
as 'Long Lake,' was eighty miles upstream; there were
numerous portages between it and Superior ; it had been
known as Dog Lake since its discovery, and its form did not
entitle it to be called ' Long ' Lake.

(3) That the St Louis was the more navigable, more
direct, and was interrupted by few portages; that even
the Pigeon River route, as compared with the Kaminia-
tikwia, was a more 'direct and continuous water-com-
munication.'

(4) That on many old maps it was designated 'The
Lake or St Louis River.'

(5) That as the treaty defined the boundary as passing
'through Lake Superior, northward of the Isles Royale
and Phelipeaux,' it was a fair deduction that, after passing
the said islands, it should run southwardly; and, if the
' Long Lake ' of the treaty lay to the north of Isle Royale,
it was difiicult to understand the upedfic direction north-
ward ' when that was its natural direction.

Commissioner Porter claimed the canoe route by way of

I
11

834 BOUNDARY D PUTES AND TREATIES

! i

k t

'kwia Ri 'er as the boundary on the following

the Kami
grounds :

(i) That the isle 'Phelipeaux' of the treaty included
Pie and other islands in a chain lying to the westward of
Isle Royale, and that the line from the latter to Long Lake
must pass to the northward of them. He identified Dog
Lake, an expansion of the upper Kaministikwia, with Long
Lake.

(2) The boundary claimed by the British C(»nmissi<mer,
after passing to the northward of Isle Royale, turned south-
westward to the head of the lake, describing a great arc
and passing comparatively close to the British shore, simply
to give an unimportant island— Royale— to the United
States. Inasmuch as a straight line from St Mary River
to the mouth of the Kaministikwia would intersect the
eastern portion of Isle Royale, the most direct route would
pass to the northward of Royale, whereas the direct route to
Pigeon River and to St Louis River passed to the south of it.

(3) The Kaministikwia canoe route had probably been
used by the French, and wa-j still used by the English. It
was the best, and afforded more continuous water-com-
munication than any other.

Mitchell's map, used by the negotiators of the treaty of
1783, showed Long Lake at the mouth of Pigeon River, and,
partly for this reason. Porter was willing to accept a line
up Pigeon River, and thence by the most continuous water-
conununication to Rainy Lake— a common point on the
Kaministikwia. Pigeon and St Louis routes to Lake of the
Woods. Barclay offered to accept the same line, provided
it commenced at the eastern end of Grand Portage, six miles
south-west of the mouth of the Pigeon River, and went thence
by way of the Pigeon River route through the navigable
waters and connecting portages. Although this only in-
volved the concession of an area of twenty-two square miles
between Pigeon River and the Grand Portage, Porter
declined to accept it, contending that the treaty required
a water-communication wherever one could be found. On
the ground that he would be exceeding h=s powers, he also
declined Barclay's offer to take the Pigeon River route.

i-H

FROM FUNDY TO JUAN DE FUCA 835

coupled with the stipulation that the Grand and other
portages should be free and open to the subjects of both
nations. Porter seems to have been under the impression
that partisanship and his duties as an arbitrator were
synonymous.

On October 23, 1826, to avoid any future misunder-
standings, the commissioners caused to be entered in the
journals a statement of the points on which they disagreed,
and described the portion of the line on which they were
agreed. As already stated,^ both claimed St George (Sugar)
Island in St Mary River.

Respecting the boundary from the head of Sugar Island
to Isle Royale in Lake Superior they were in s^reement. From
Isle Royale the United States commissioner claimed that the
boundary should pass north of Pie Island to the mouth of the
Kaministikwia River ; thence by way of the Kaministikwia
canoe route to Lac la Crouc, where it joined the Pigeon River
or Grand Portage route ; thence by the Namakan River to
Namakan Lake, where it joined the St Louis River route ;
thence through the middle of Namakan Lake and its water-
communication to Rainy Lake, where it joined the line
claimed by Barclay. The British commissioner claimed
that from Isle Royale the line should pass through the
middle of Lake Superior to the mouth of the St Louis ;
thence up the St Louis to the head of its Embarras tributary ;
thence by the Vermilion River to Namakan Lake ; thence,
by the same route as claimed by Porter, to Rainy Lake.

From Rainy Lake to Lake of the Woods they were in
agreement respecting the boundary, and defined it as passing
through the middle of Rainy Lake to its sortie ; thence down the
middle of Rainy River to Lake of the Woods ; thence north-
westerly and westerly to the head of a bay, ' being the most
north-western point of the Lake of the Woods,' in latitude
49* 23' 55' N and longitude 95' 14' 38" w.

On July 16, 184a, Lord Asl, burton wrote Webster propos-
ing that ' the line be taken from a point about six miles
south of Pigeon River, where the Grand Portage commences
on the lake, and continued along the line of said portage,

« Supra, p. 83a.

IIL

836 BOUNDARY DISPUTES AND TREATIES

alternately by land and water, to Lac la Pluie [Rainy Lake],
the exifting route by land and by water remaining common
to both parties.'

On the 37th Webster repUed that he was willing to agree
on a line following the Pigeon River or Grand Portage route
to Rainy Lake, it being understood that all the water-
communications and portages should ' be free and open to
the use of the subjects and citizens of both countries.'

Lord Ashburton accepted these terms, and they were
incorporated in the treaty. Article n of the Ashburton
Treaty described the boundary from the point in the St Mary
River where the commissionera under Article vi of the
Treaty of Ghent concluded their labours. The boundary
was defined so as to leave St George (Sugar) Island to the
United States ; thence through Lake Superior as agreed by
the commissioners under Article vn ; from Isle Royale
' through the middle of the sound between Isle Royale and
the north-western main land, to the mouth of Pigeon River,
and up the said river ... to the lakes of the height of land
between Lake Superior and the Lake of the Woods ' ; thence
through the water-communication * to that point in Lac la
Pluie, or Rainy Lake, at the Chaudi^re Falls, from which the
Commissioners traced the line to the most north-western point
of the Lake of the Woods. ... It being understood that all
the water-communications and all the usual portages along
the line from Lake Superior to the Lake of the Woods, and
also Grand Pbrtage ... as now actually used, shall be free
and open to the use of the citizens and subjects of both
countries.'

Review op the Awarded Boundary under Articles vi

AND vn OF THE TREATY OF GHENT

Reviewing the division of the islands in the River St
Lawrence, there can be no doubt that Great Britain fared well.
She secured the largest and most valuable, Wolfe Island, with
an area of 49 square miles, and nearly half the others. In the
St Mary River, St Joseph Island, 142 square miles, was
awarded to her ; and Sugar Island, 40^^ square miles, and

FROM FUNDY TO JUAN DE FUCA 837

Encampment Island, isH square miles, passed to the United
States. On the Ki^ George lu map the boundary-line is
drawn indicating Cockbum and St Joseph Islands— both
awarded to Great Britain — as United States territory, and
Sugar Island — awarded to the United States--a8 British
territory.

In Lake Superior the inclusion of I%ilipeaux Island in
tiie boundary description caused much confusion. The error
is due to Mitchell's map, wherein Isle Royale is indicated
twice, first under its own name and again as a large island —
*I. niilipeaux' — lying south-east of it. There is a similar
duplication of our present Michipicoten Island, which appears
as ' I. Maurepas,' and, agaiuf as ' Pontchartrain I.'

Before considering the question of 'Long Lake' it is
necessary to revert to the negotiations of 1782. The basis of
division finally agreed upon was to follow the middle of the
St Lawrence River proper, and its upward continuation.
Unfortunately for CaJiada, Mitchell's map, upon which the
nq:otiators relied, showed a large unnamed river flowing
Jrom Lake of the Woods 1» Lake Superior and, near its
mouth, passing through an expansion designated ' Long
Lake.' The Mississippi was only indicated to the southern
border of an ' inset ' map in the north-west comer of the
map, but was shown as a large stream that probably had its
source far to the north. The boundary was therefore carried
up what appeared to be much the largest stream emptying
into Lake Superior, and thence due west to the Mississippi.
As a matter of fact, later explorations showed that the source
of the Mississippi is due south of Lake of the Woods.

Respecting ' Long Lake ' there can be no doubt of its
identity with the present Pigeon Bay. The stream from
Lake of the Woods represents Rainy River, which, as we now
know, flows into it. Near Lake Superior it represents Pigeon
River, a small stream that empties into Superior. But for
this geographical error the line would almost certainly have
been drawn to the head of Lake Superior ; thence up the
St Louis River to its source; and thence due west to the
Mississippi — a much more favourable line for Canada.

Here, as on the New Brunswick and Quebec frontier, British

838 BOUNDARY DISPUTES AND TREATIES

diplomacy at a later date strove, and partially micceeded, in
repairing the damage done by Oswald and Shelbume in 178a.

Bkyce-Root Treaty, 1908

By Article iv of the Boundary Treaty, signed at Washing-
ton, April II, 1908, the existing International Waterways
Commission was ' empowered to ascertain and re-establish
accurately the location of the international boundary line '
through the River St Lawrence, the Great Lakes and connect-
ing waterways. It further provided that wherever the
boundary is shown by a curved line along the water, they are
authorized to substitute for it a series of connecting straight
lines * following generally the course of such curved line ' ;
also that the line shall be mariced by buoys and monuments
in the waterways where practicable; elsewhere by range
marks on adjacent shores.

The Rivers and Harbours Act, 190a, requested the presi-
dent ' to invite the Govemme- *: of Great Britain to join in
the formation of an interna ior. 1 commission. ... to in-
vestigate and report upon the cjnditions and uses ' of the
St Lawrence waters, adjacent to the boundary between
Canada and the United States. The invitation was duly
communicated. On the part of Great Britain, J. P. Mabee,
Wm. F. King and Louis Coste were appointed. Colonel
O. H. Ernst, George Clinton and Gaidner S. Williams
were appointed on the part of the United States. In 1905
Mabee resigned, and was succeeded by George C. Gibbons.
In 1907 Wm. F. King was succeeded by W. J. Stewart. Of
the United States commissioners, Gardner S. Williams was
succeeded by G. Y. Wisner ; later, >^ner was succeeded bv
E. E. HaskeU.

To date, Mprch 1913, the ' connecting straight lines ' have
been tentatively laid down on the charts, but differences have
arisen respecting the deviation from the curved lines.

Article V of the Bryce-Root Treaty provided for the
re-establishment of the boundary line between the mouth of
Pigeon River and the north-westernmost point of Lake
of the Woods. It further provided for the marking of the

FROM FUNDY TO JUAN DE FUCA 839

boundary stmilariy to Artickt I, n and m. Under the
provinons of the article Wm. F. Kong was appointed oom>
nuMioner on the part <rf Great Britain, and O. H. Tittmann
on the part of the United States. To Mardi 1913 some
triangulation had been comfdeted and part of Pigeon River
and Lake of the Woods between North-wast Angle and Big
Island had been surveyed.

Fxoii Lakb of thb Woods to the Pacific Ocban

The international boundary between Canada and the
United States, as defined in the treaty of 1783, followed the
water-conununications from Lake Superior to the 'north-
westernmost point ' of Lake of the Woods, ' and from thence
on A d$te west course to the River Mississippi ; thence
by a line to be drawn along the middle of the said River
Mississippi,' etc. As already stated* this description was
based upon the erroneous delineation in Mitchell's ma^, of
the topography of this area. Shordy after the treaty was
signed the accuracy of the map was impugned, and •*. was
stated that a line drawn due west from lJk of the Woods
would not intersect the Mississippi.

Article V of the Hawkesbury-King convention, concluded
May 12, 1803, provided that ' Whereas it is uncertain whether
the River Mississippi extends so far to the Northward as to
be intercepted by a Line drawn due West from the Lake of
tiie Woods ... it is agreed that ... the Boundary of the
United States in this quarter shall ... be the shortest line
which can be drawn between the North-west Point of the Lake
of the Woods and the nearest Source of the River Misrissippi.'

On April 30, 1803— two weeks earlier— France and the
United States had concluded a treaty whereby the former
ceded to the United States 'the Cokmy or Province of
Louinana with the same extent that it now has in the hands
of Spain, & that it had when France possessed it.' Fearing
that the Hawkesbury-King conventi(m might a£Fect the rights
acquired under the Louisiana Treaty, the United States
Senate ratified it without the fifth article. The British

VOL. VIII

Smprm, p. 753.

I- '

h :

840 BOUNDARY DISPUTES AND TREATIES

government, however, refuwd to accept the amended
treaty.*

On September 5, 1804, Monroe delivered to Lord Hammby
a paper in whidi he re^^ewed the n^p>tiationa affecting the
bcHmdary east and west of Lake of tiie Woods. He stated
that commissaries appointed under Article x of the Treaty
of Utrecht had

fixed * the northern boundaiy of Canada and Louisiana
by a line beginning <» the Athmtic, at a cape or promon-
tory in 58° y/ north latitude ; thence, south-westwardly
to the Lake Aiistassin ; thence, further south-west, to the
latitude 49" north from the equator, and along diat line
indefinitely. ... It was not contemplated by either of
them [the negotiators of the treaty of 1803] that America
should convey to Great Britain any rig^t to the teriitoiy
lying westward of that line, since not a foot of it belonged
to her : it was intended to leave it to Gr«t Britain to
settle tiie pdnt as to sudi territory, or such portion of
it as she nug^t want, with Spain, or rather with France,
to whom it then bdonged ... the stipulaticm whidi is
contained in the fifth article of the convention has
become, by the cesstcm made bn^ the [Loidsiana] treaty,
perfectly nugatory; for, as Great Britain hokls no
territory southward of tiie fbrty-ninth degree of north
latitude, and the United States die idiole of it, the line
proposed by that article would run through a country
idiidi now bdongs exdusivdy to the latter.

On Deoembe* 31, 1806, Lords Holland and Auckland, on
the part of Great Britain, and James Monroe and ^lUam
Pinkney, on the part of the United States, signed a treaty <^

* jMMtHaafotiUiiitwIStatMiBiiiitte at London, wrato that LocdHatiowbjr,
tiM fonign Mcretary, whan infonmd that it had baan latUlod withont ti.3 fifth
article, ' oanoNd in atrong tamu the practiea into i^iieh wo had idlen o< latUyidg
tnatiaa, with eacaptiona to porta of them, a ptactioe lAich he tanned new, no-
antitofiaad, and not to bo aanctianad. ... Ho otaw»ad with aomo dagraa ot
mensitf . . . that, having diaoovered ainoe thia treaty waa iociaed that yoa had
coded tatiitory which yoa do not wiah to part wiOi, yoa are not diapoaed to
tatify that article' {AmtrUm 5M( Pa^ari, Fortign RtltUom, liL p. 93).

■ The aocnmcy of tiia alateuiant that the oonuniaiiooara under the Traaty of
Utrecht had aetfled the tMondary waa firat challenged by Gteenhow in the
WtuhiHtlon Oob* of Jaaoary 15, 184a See alao Greenhow'a ftiOory ofOr^on ami
CwlifdmU. Thei<riAnaltMiPkqft«rtintheOttta(io>lCanitobnBoandaryCaaecoa'
tain oondoaive evidence that no aettlemant waa arrived at. See alao pp. 886.91.

FROM FUNDY TO JUAN DE FUCA 841

amity and commerce. After the treaty was concluded the
Brituh negotiaton i»opoeed a Mif^lemental convention
defining the boundary from die north>wett an^ of Lake
of the Woodi. They propoeed that it be drawn due aouth to
die 49th parallel and thence due west ' as far aa the territories
of the United States extend in that quarter . . . provided
that nothing in the present article shall be omstrued to
extend to the north-west coast of America, or to the territories
bebnging to or claimed by either party, on the continent of
America, to the westward of the Stony Mountains.' Eventu-
ally, to meet the objections of the American commissionerB,
the words ' as far as their said respective territories extend in
that quarter ' were substituted for ' as far as the territories of
the United States extend in that quarter.' However, as the
treaty itself did not contain a renunciation by Great Britain
of the right of impressment, Fl«sident JeflFerson refused to
submit it to the Senate.

This proposal was an official acknowledgment by Great
Britain that, by the Treaty of Utrecht, the 49th parallel formed
the boimdary between the Hudson's Bay Company's territories
and Louisiana. The first suggestion of this lUie had appeared
in instructions from Madison, United States secretary of
state, to Monroe, bearing date February 14, 1804. Madison
said that ' there was reason to believe ' ^t die commissionerB
had decided upon that parallel as the boundary. He con-
tinued : ' But you will perceive the necessity of recurring
to the proceedings of the commissioners, as the source of
authentic information.' The proposal by the British negoti-
ators was doubtiess due to the fact, that during the negotia-
tions under the Treaty of Utredit the British commissumers
contended for the 49th parallel as the southern boundary of
British territory, the Frendi commissicmerB, riaimng die
territory to within about fifty miles from Hudson Bay. The
commissioners, however, disagreed, and no settlement was
arrived at. Unfortunately for Britidi interests, British geo-
graphers adopted the British contention, and on their maps
the 49th parallel was stated to be the southern boundary of
the Hudson's Bay Company's territories. When, in 1763,
the whole of Canaida passed to Great Britain, the question of

4)
1 1

■}!

843 BOUNDARY DISPUTES AND TREATIES

title became of aoMtenic inteieet only, but the erroneous
imprefrion req>ect>ng the 49th pumllel foetered by the mape
hed received general aoceptmtion. In any event, it was the
Britiah claim reqwcting the boundary between the Hudson's
Bay Company's territories and Canada, not between the
former and Louisiana, as stated by Madison. The true
northern boundary of Louisiana was the northern watershed
of the Mississi^ii and Missouri Rivers. As a result of this
misundentandii^, the soudwm boundary o! Canada across
half the continent rests upon a mistaken idea.

In the n^^tiations for die Treaty of Ghent, 1814, the
British plenipotentiariesf^ered to accept the 49tb rmllel fram
Lake of the Woods westward as the bound«y, but coupled
their acceptance with a stipulation for the free navigation
of the Mississippi. As die latter proposition was unaccept*
able to the Anmicans, the article was omitted altogether.

In 1818 a convention respecting fisheries, boundarws,
etc., was concluded at London. "Die negotiators for the
United States, Albert Gallatin and Richard Rush, proposed
that the 49th parallel should be made the boundaiy between
Lake of the Woods and the Padfic. The British negotiators,
F. J. Robinstm and Henry Goulbura, 'did not make any
formal pn^Msition for a boundary, but intimated that tiie
river [Columbia] itself was the most convenient that couU
be adopted, and that tiiey woukl not agree to any that did
not give them the harbour at tiie mouth of the river, in oun-
mon with the United States.' Later, the British n^otiatora
proposed the insertion of an arti'-**! providing that the 49th
parallel should be the boundary ivestward to the Rocky
Mountains, and that, west of tiie Rockies, the country
between tiie 45th and 49th paraUels should be free and
open to the dtiaens of both countries. To this the Ameri-
cans demurred. Eventually, to meet the objections of ^
American nq^otiatoni, Article m was modified to read that

My country that may be claimed by either party on
tiie north-west coast of America, westward of the Stony
Mountains, shall, together with its haibours, bays, and
oieeks, and the navigatira of all rivers within the iia«|ie,
be free and open, for the term of ten years frran the date

FROM FUNDY TO JUAN DE FUCA 843

df the aigiuiture of die ptcMnt convention, to the htmcIi.
dtteni, and tubjecta of the tuo Powen : it being wdi
undetBtood, that thk agreement ii not to be conrtnied to
the pr^udice of any claim, whkh either of the two hirii
contfBcting parties may have to any part of the mm
country etc.

In i8ai the emperor of Ruasia iwued his famous ukase
which forbade * all foreign vessels not only to hud on the
coasts and islands' between Bering Strait and the 51st
puallel, ' but also, to approach them within leas than a
hundred Italian miles' under penalty of confiscation of
vessel and cargo. As this was alao an aaaertion to terri-
torial righta to thia area. Great Britain and the United
Statea promptly protested it. Four months after the con-
vention of 1818 with Great Britain the United States had
acquired by the Treaty of Florida Blanca, February aa,
1819, all the territorial ri^ts of Spain on the Pacific coast
north of latitude 42" n. Basmg the daims of tiie United
States on the discoveries of Captain Gray, and of Lewis
and Clark, and as the successor in title to Spain, John
Quincy Adams, United Statea secretary of state, instructed
Richard Rush, United States minister at London, to ' stipulate
that no settiement shall hereafter be made on tiie North-
west Coast or on any of the islands thereto adjoining by
Russian subjects south of latitude 55°, by dtizens of the
United States nortii of latitude 51", or by British subjects
dtiier aoutii of 51" or nordi of 55»,' latitude 5i» being fixed
as approximating to the Utitude of the upper portion of the
Columbia.

George Canning, British secretary for Foreign Affairs,
»vas astounded at these pretensums,^ and, as a result. Great

>^RMh, in hia SttU»net t tkt Comt of LomUm, p. 469, my* that r^^nt^
wrote him nspeeting a mamanndnin MK by him (Rnab) :
' Or north ^fipy-fn*:

vdOtiM United StetaB. Bnt doth* United StatMBiMa to tnvdMortt to gel
Mewm OS and RoMia » and do they mean to itipnlate against Gnat Britain,
ia favoor of RoMia, or MMCve to tfaenudvei whatever Rnaia may not want ? *

Rnth replied that Canning had read hia note correctly. Canning wrote him
that be would take Rnah'i esplanatirai ' lilu the wiie and wary Datchman of
old timea, «< r«/«r«M(i«M, and a4 ceMt^oMfatM.' See alao p. 921.

iri

Ill

844 BOUNDARY DISPUTES AND TREATIES

Britain dedined to join die United Statee in the negoda*
tim with Rtiaiia. Rtiah dien entered upon a aeparate
negotiation with Oreat Britain. William HoskiMon and
Stiatfofd Canning, the Britieh negotiaton, totally declined
the propoaition reelecting tiie limitation of Britiah tettle-
ment on the west coast, and totally denied the validity ol
the daims of Spain and of the United States as based on
the discoveries of Gtay, and Lewis and Claris. ' They said
that Great Britain considered the whole of the unoccupied
parts of America, as being opea to her future settlements
in like manner as heretofore. They included within these
parts as well that portion <A the North West Coast tying
between the 43nd and 51st degrees of latitude, as any other
parts.' * Finally, the British negotiaton offered to accept
the 49th parallel to its intersection with the Columbia ' and
Ounce, down, okmg the middle tff the Cdumbia, to the Padfie
Ocean ; the navigation of this river to be forever free to the
subjects and dtiaens of both nations.' ' Rush dedared his
' utter inability to accept such a boundary,' but offered to
shift the 'souihem line as kw as 49* in place of 51°.' This
proposal was rejected by the British plenipotentiaries.

On April 17, 1824, the United States and Russia cxhh
dttded a treaty whereby it was agreed that dtisens of the
United States woukl not form settlements north -of latitude
54* 40', and that Russian dtizens woukl not form settle-
ments south of it. On Februaiy a8, 1825, Great Britain
also conduded a treaty witii Russia whkh limited Russian
America, on the south, by latitude 54* 40^, and, on the east,
by the first range of mountains and the I4i8t meridian.
Tliese treaties eliminated Rusna and lett the territory to
the south of 54" 40^ to be divided between Great Britain
and the United States.'

> Ruah, It$$Unu!$ at lh$ Comt ofLomtUm, p. 398.

• Ibid., p. 607.

• • That tbiM tiwty rirtiially aannllMl the coavmtion ol the praowUag jrMr,
betwwn RomU and the Unitad Statw, is eviitont; ior th« eomttiUon iwttd
entirdy npoa the anamirtion that the United States powsisai the same right
to the part of the American coast south of the paiaUel of S4* 40' which Rnssia
possssssJ to the part north of that paralld ■ and the *t4Uy distinctly acknow-
ledged the former or soothem division of the coast to be tlie property of Great
Britain' (Greenhow, Hittofy o/OrtgoH and Califamia, p. 343).

FROM FUNDY TO JUAN DE FUCA 845

la 1836 MtotiatkMU were ratunwd at the inttaaoe of
Canniiif . The daim formulatad by Ruah wm naflBnned,
but Gallatia, United Statee minkter at London, wae in-
etnicted to offer at the ' ultimatum ' of the United Statee
' the extenaion of the line on the parallel of 49* ' from the
Roddee to tiie Pacific. He was abo authorised to concede the
navigation of ' the brenches of the Cdumbia River whidi
are navigable from where it [the 49th parellel] interMcts
them to the ocean.' The Britiah plenipotentiariea, Huakiiaon
and Addington, refdied diat 'tiw United States had no
right to dispossess a sin^ British subject, or in any way
to exerdse Jurisdiction in any part of the territory in quee*
tion.' They also objected to the 49th parallel line on the
ground that it would cut off the southon portion of Van-
couver Island. Later, Gallatin intimated that he was
willing to concede the southern portion of Vancouver Island
in return for compensation elsewhere. He had in view the
exchange for it of ' the wht^ or part of the upper branches
of the Columbia River' nordi of latitude 49* n. The
British negotiators replied that, as the United Statee daimed
that the Britiah propoaal only left them one aeaport, and
that difficult of acoeaa, they were willing to concede tiie
peninaula bounded on the aouth by a line fiom Grays
Harbour to the head of Hood Canal, and, on the east, by
the peninsula east oi Hood Canal and Admiralty Inlet^
an area of about 5400 aquare miles, ^th this exception
they adhered to the line of the Cohuibia River. To diis
proposition Gallatin replied that he ' rejected it at once.*
As the negotiators were unable to reach an agreement
they conduded, on August 6, 18J7, a convention extend-
ing indefinitely Article m of the oravention of 1818,
subject to termination by dther party <m twdve months*
notice.

It is necessary here to oonaider the grounds upon whidi
Great Britain and tiie United States, req)ectivdy, based
their claims to the area in dispute, prefacing the survey by
a historical review.

M BOUNDARY DISPUTES AND TREATIES

HmoBiCAL RBvntw

On JuM 7, 1494. SfMia and Portufid ooochMM at
TofdMillM a traaty of Partition of the OoMn wlMivby the
FbrtugiMM vera awaidad twOaaty tanitorial ri^ta mM
of tha maridian line paaring 370 laaguaa wwt of tiia Capa
Verda lalands, and the Spaaiaidt were awaided <rimUar
righta msI of the Mme meiidiaa. Bulla had picvioualy
been aecured from Pope Nicholaa v and Pope Alennder in.
grantinc thaw privikgca. The English, however. diu«-
garded the papal prohlbitiona and sent out cxpeditiona of
diaoovery.

In 154a Cabrillo (Sp.) examined the west coast of North
America to latitude 37* lo' m. In the following year hia
iiiccessor, Ferrelo, reached latitude 40* ao' H. and possibly
farther north.

In 1579 Sir Francis Drake (Br.) explored the Pteific
coast of Nctftii America as far as 48*H latitude. He hnded
at Bodega Bay, about forty miles north of the present dty
oi San Frandsoo, took possession of tho country in the n^tw^
of Queeu Elisabeth, and named it New Albion.

In 158a GaU (or Gualle) .achod latitude 37K* m. It
waa a private mercantile enterfMrise, and was not authwised
Irr ^ government of New Spain.

One of >^acaino's (Sp.) ships is snppoaed to have readied
43* N in 1603.

In 1741 Bering (Russ.) i^hled a mountain in latitude
60* M and named it St Eliaa. His subordinate, Chirikof,
dinooverad hmd in 55* 41' m btitude, and coasted to latitude
58*ai'K.

Before 1779 the ^Mmiards had formed estaUishments
aa far noL h as San Francisco. In 1774 Pares (Sp.) sighted
the presoit Qutea Ouuiotte Islands, and, possibly, Nootka
Sound. He reached ktitude 54* n. In 1775 Heceta (Sp.)
discovered the river now known as the CblumUa, and nuned
it Rio de San Roque. One of his ircsscis, ccnnmanded by
Bodega, reached 58* N latitude, thus overiapping the dis>
coveries of the Ruadans. The accounts of Perez's and
Heceta's voyages were suf^ressed by the Spaniards, and

!('■

FROM FUNDY TO JUAN DB FUCA 847

nothing dtfinite wm known oooomiing them till •ftcr th*
pubUcation ol th* Jounub ol Cook's voyi««.

Ini776Cook(Br.)wMinttructedtoprooMdtotlMOOMt
of New Albion in btitud* 45* M, • drcuoMtuioe whkii ihowed
nat tb« Britidi fovemnwnt hadnointentkmof reUnquishing
•ny right, acquirad by Draka b 1579. Ha was to pioueed
northward to btitude 65* m, where he was to begin bis
March for a paiMge to Hudson Bay or Baffin Bay. As no
Spanish discoveries made subsequent to ^acaino's in 1603
had been published, and as the accounts of the Russian
voyages were very imperfect, these instructions were in
•coordance with intematk>nal law. Cook surveyed the
coast from latitude 47* N to Icy Cape in the Arctic Ocean.
Although tiie coast had been righted at various points by
F^rei. Bodega, Heceta. Bering and Chlrikof, Cook's obser-
vatimis were infinitely more minute and more important
than those of any, or all, of the other nav^tors who had
IMCcededhim.

One result of the pubUcatkm of Coca's journals was an
influx of fur traden. Among the first oerKms engaged in the
trade were British subjects, sailing under Portuguese cok>un

to evade the penalties for invading the chartend ri^ts of the
South Sea Company or of the East India Company. One
of the principal places of resort ol the fur traden was Nootka
Sound on the west coast of Vancouver Island. In 1788 an
expeditkm commanded by John Meares, a half-pay Ueutenant
in the British navy, was fitted out at Macao, China, to trade
on the west coast of North America, and sailed under the
Porlugueee flag. Meares entered the estuary of the Columbia
m search of the good harbour reported at Ensenada de
Heceta by the Spaniards. Not finding it, he named the
waters Deceptkm Bay and a cape at the entrance Cape Dis-
apptMntment. Though he did not recognize it as the mouth of
a river, he thus rediscovered the Rio de San Roque of Heceta
—the Columbia River of the present day.

As the ^Mniarda claimed the whole of the west coast of
North America, considerable uneasiness was created at
Madrid by statements in Cook's works ngpecdng the Russian
establishments in what is now Alaska, and by the influx of

VOL. nu «

r>i

^,|i=

I M

■I '

848 BOUNDARY DISPUTES AND TREATIES

fur traders into the North Pacific. In 1789 Martinez, a
Spanish naval commander, seized at Nootloi, under circum-
stances that were nearly equivalent to piracy, four vessels of
Meares's trading fleet. The British government demanded
immediate restoration of the vessels seized and reparation for
the losses and injuries sustained by the British traders.

On October 28, 1790, a treaty between Great Britain and
Spain, commonly called the Nootka Convention, was signed
at the E^urial. Articles I and 11 providei for the restoration
by Spain of the buildings and lands seized at Nootka in 1789
and reparation for all losses. Article v provided that, on the
north-western coasts of North America north of the parts
already occupied by Spain, wherever the subjects of either
power had made settlements since 1789 or ' shall hereafter
make any, the subjects of the other shall have free access,
and shall carry on their trade, without any disturbance or
molestation.'

On January 11, 1794, a supplementary treaty was signed
at Madrid. After reciting that subjects of both powers had
equal rights of frequenting Nootka Sound, it provided that
' neither the one nor the other of the two parties shall make
any permanent establishment in the said port, or claim there
any right of sovereignty or territorial dominion to the exclusion
of the other. And their said Majesties will assist each other
mutually to maintain tn their subjects free access to the
said port of Nootka agamst any other nation which should
attempt to establish there any sovereignty or dominion.' It
is worthy of note that this secret treaty v/as probably not known
to ike American diplomats during the Or^on controversy, and
VMS first published in 1862.

In 1792 Captain Vancouver arrived on the north-west coast
as commissioner on the part of Great Britaui to determine
what lands and buildings were to be restored by Spain, and
the amount of indemnity due British claimants. He was also
instructed to survey the coast from latitude 35° N to 60° N, to
asceitain the existing settlements, and to determine definitely
theexistence, or non-existence, of any water-passage that might
serve as a channel for commercial intercourse between the
west coast and the British territories on the east coast.

FROM FUNDY TO JUAN DE FUCA 849

As already stated, Heceta had, in 1775, discovered the
Ensenada de Heceta, and concluded that it was the mouth of
a river. While his report was not made public, the river was
indicated on charts ; Meares, in 1788, had confirmed Heceta's
discovery of the bay, but failed to discover that it was the
estuary of a river ; in 1793 Vancouver observed that there was
river-cohured water in the bay, but concluded that, under the
instructions of the Admiralty, the opening was not of sufficient
importance to justify examination ; a fortnight later Gray dis-
covered that it was a river, and explored the estuary for twenty
miles ; later, Vancouver's lieutenant, Broughton, examined
the river for one hundred miles— eighty miles above Gray's
' farthest '—and formally took possession for Great Britain.

In 1793 Alexander Mackenzie (Br.) ascended Peace
River, and made his way across the intervening territory to
the Pacific in latitude 52' 20'. This was the first expedition
of civilized men through the country west of the Rocky
Mountains. In 1800 Duncan MoGillivray, a British fur
trader, ascended the North Saskatchewan River and dis-
covered the Howse Pass. He travelled four miles down the
Blaeberry River, and was thus the first white man to discover
the upper watera of the Columbia.

As already mentioned, Louisiana was ceded to the United
States in 1803. In the following year Captains Lewis and
Clark were commissioned by President Jefferson to explore
the Missouri River to its source, and also to seek some water-
communication thence to the Pacific. In 1805 these explorers
descended the Snake and Columbia Rivers to the Pacific.
In 1806 the North-West Company, a British company,
established Fort Fraser in latitude 54* n— the first settle-
ment made in the so-called Oregon territory by civilized man.
In 1807-11 they established other posts in the basin of the
Columbia, and explored the main stream and its principal
branches. In 1808 the Missouri Fur Company established
a trading post on Snake River— the first establishment made
by citizens of the United States, west of the Rockies. It was
abandoned in 1810. In 1807 the North-West Company built
Kootanae House near Columbia Lake, the head-waters of
the Columbia River. Prior to the construction of Astoria

850 BOUNDARY DISPUTES AND TREATIES

they had built at least four poati loutii of latitude 49* n,
via. Fort Kbotenae Falls (i8o8), Kullyspell House (1809),
Saleesh House (1809) and Spokane House (i8io ?). In 1811
the Pacific Fur Company, an American company, founded
Fort Astoria at the mouth of the Columbia. In 1813 Great
Britain and the United States were at war, and Astoria was
sold to the North-West Company to prevent its capture by
a British man-of-war.

The Treaty of Ghent, 1814, provided that possessions taken
during the war should be restored. In virtue of this article
the United States announced that they intended to reoccupy
Astoria. Great Britain claimed that the title had passed to
British subjects by peaceful purchase, but, that ' not even
the shadow of a reflection might be cast upon the good faith of
the British government,' it was restored to the United States.

On May 20, 1818, Adams wrote Rush explaining that it
was through inadvertence that Great Britain had not been
notified that the United States was sending a sloop of war to
resume possession of Astoria. He wrote :' As it was not antici-
pated that any disposition existed in the British Government
to start questions of title with us on the borders of the South
Sea, we could have no possible motive for reserve or conceal-
ment with regard to the expedition of the Ontario.' He
instructed Rush to give Castleieagh

to understand, though not unless in a manner to avdd
everything oflFensive in the suggestion, that, from the
nature of thmgs, if in the couree of future events it should
ever become an object of serious importance to the United
StatM, It can scarcely be supposed that Great Britain
would find It useful or advisable to resist their claim
to possession by systematic oppodtion. If the United
States leave her in undisturijed enjoyment of all her holds
upon Europe, Asia, and Africa, with all her actual pos-
sessions in this hemisphere, we may veiy fairiy expect
that she will not think it consistent either with a wise or
a friendly Mlicy to watch with eyes of jealousy and alarm
every possibility of extension to our natural dominion in
North America, «*ich she can have no solid interest to

Erevent, until all possibility of her preventing it shall
ave vanished.

FROM FUNDY TO JUAN DE FUCA 851

That the United States should agree to leave Great Britain
' m undisturbed enjoymetU ' of her territorial possessions in
Europe, Asia and Africa is delicious. ' It is doubtful if
Rush found an opportunity to communicate Adams' surpris-
ing suggestion to Castlereagh without avoiding everything
offensive.'^

In 1836, when the ten-year period of joint occupation was
drawing to a dose, negotiations for a settlement of boundaries
were carried on by Huskisson and Addington and by Gallatin.
The protocols attached to the sixth and seventh conferences
are admirable statements of the British and United States
cases respectively.

British Statbicent

The British plenipotentiaries asserted that over a large
portion of the disputed territory, namely from latitude
42<* N to 49<* M, the United States claimed full and exclusive
sovereignty, whereas Great Britain claimed no exclusive
severely over any portion of it. Her claim was limited to a
right of joint occupancy, in common with other states, leaving
the right of exclusive dominion in abeyance. In brief, the
pretensions of the United States tended to the ejectment of
all other nations from all right of settlement in the area south
of latitude 49** N, whereas the pretensbns of Great Britain
only tended to the mere maintenance of her own rights in
resistance to the exclusive character of the pretensions of the
United States.

The statement continued : The claims of the United
States were urged upon three grounds :

(i) As resulting from their own proper right.

(3) As the successor in title to Spain by virtue of the
Treaty of Florida Blanca.

(3) As the successor in title to France by virtue of the
cession of Louisiana in 1803.

The right proper was based on the aHegied discovery of the
Cdumbia by Robert Gray, on the explorations of Lewis and
Clark, and on the settlement of Astoria.

* Reeves, Diplomacy itnitr Tyltr and PM, p. 3x7.

85a BOUNDARY DISPUTES AND TREATIES

The right derived from Spain was founded on the alleged
fwior discoveries by Cabrillo, de Fuca, Gall, and Penz. The
right derived from the cession of Louisiana was founded on
the assumption that, as the boundaries of that province had
never been defined loHgUuHtiatty, it might fairly be asserted
to extend westwatd to die Pacific

The British statement dauned that only one of the three
daims could be valid. If, for example, the title of Spain by
first discovery, or the title of France as the original possessor
of Louisiana, were valid, then either Prance or Spam possessed
the country wAm the United States claimed to have discovered U.
If, on the other hand, the Americans were the first discoverers,
Spain had no daim ; and if priority of discovery constituted the
title, that of France fell equally to the ground. In addition,
the most approved writers on international bw were agreed
that mere acddental discovery, unattended by exploration—
by formally taking possession— by effective occupation— by
purchase or cesdon from the natives— constituted the lowest
form of title, and that it was only in proportion as first
discovery was followed by any or all of these acts that such
title was strengthened.

Respecting the title derived by cession from Spain, the
British statement maintained that, even if the conflicting
claims of Great Britain and Spain had not been finally adjusted
by the Nootka Convention* in 1790, nothing would be easier
^an to demonstrate that the claims of Great Britain estab-
lished more than a parity of title either as against Spain or any
other nation ; whatever the tide may have been prior to the
convention, it was agreed that all parts of the coast not abeady
occupied by Spain or Great Britain should be equally open to
the subjects of both ; with the rights conveyed to the United
States by Spain by virtue of the Treaty of Florida Blanca,
the United States necessarily succeeded to the limitations by
which they were defined and the obligations under which
they weT to be exerdsed.

* ' If tlh. iNootka convention w«re, as asserted (J. Q. Adams to Richard Rush)
by the secretary of state, a definitive settlement of general prind{des of natioual
law respecting navigation and fishery in the seas, and trade and settiement on
the coasts, here mentioned, it would be difficult to resist the pretensions of the
BiitUh plenipotentiaries' (Graenhow, Uithiy oJOngm mii Califomui, p. 341).

FROM FUNDY TO JUAN DE FUCA 853

Respecting the third ground of claim, baaed upon the
ceiaion of Louisiana, the British statement said that by the
cession of 1763 the territory of Louisiana belonged to Spain
in 1790, when the Nootka Convention was signed, and in
1793, when Gray discovered the Columbia. If Louisiana
included the disputed area south of latitude 49" n, it was
necessarily included in the stipulations of t' s Nootka Con-
vention. To expose the futility of this claim, however,
it was only necessary to refer to the original grant to de
Crozat by Louis xiv, wherein it is expressly described as
'the country drained by the waters entering, directly or
indirectly, into the Mississippi.' As no tributaries of the
Mississippi cross the Rockies, no portion of Louisiana could
be found west of them.

The British sta .. -sent said that, if the discovery of the
mere entrance of the Columbia by a private American
citizen constituted a valid exclusive claim to all the country
between latitude 42° N and 49" N, then must any pre-
ceding discovery of the same country by an individual of
any other nation invest such nation with a more valid,
because a prior, claim to that country. Putting aside
Drake, Cook and Vancouver, who either took possession
of or touched at various points of the coast in question,
in 1788 Lieutenant Meares of the royal na\'y, when on a
trading expedition, took formal possession of the Strait of
Juan de Fuca, purcliased land and formed treaties with the
natives, and entered the bay at the mouth of the Columbia.
Meares's account of his voyage was published in 1790, two
years before Gray entered the Columbia. While Gray was
the first to ascertain that this bay formed the outlet of a
great river, could it be seriously urged that this single step
in the progress of discovery not only superseded the prior
discoveries, but that it also absorbed tiie subsequent explora-
tion of the river by Vancouver for near a hundred miles
above Gray's ' farthest,' and also all the other discoveries,
and temporary possession and occupation of harbours on
the coast ?

To support the extraordinary pretension built upon the
limited discovery of Gray that Meares's ' bay ' was the

854 BOUNDARY DISPUTES AND TREATIES

embouchure of a river, vie, diat it conferred an eiduiive
title to the iHide basin oi dw river, the United States had
dted various grants by European sovereigns over several
parts of the American continent. Had the United States,
in 1790, granted to Gray the basin of the Columbia, it would
have been valid as against other dtiaens of the United
States, but would either Spain or Gnat Britain have ac-
quiesced ? And, if the ri^t of sovereignty accrued to the
United States by Gray's discovery, why did not the United
States protest the ocnventimi of 1790 ? As against the
explorations of Lewis and Claric, the North-West Company
of Canada had already established poets on die head-waters
of the nordiem Inandi of the Columbia,^ and from one of
these parts their agent David Thompson, in 181 1, descended
to the mouth to ascertain the nature of the Astoria settlement.

Respecting the restitution of Fort Geoige, the British
statement said that, when the demand for its restoration
was made, the British government demurred because it
entertained doubts how for it could be sustained by the
con8tructi(m of the treaty. It was not a national posses-
sion or a military post, and it was never captured from the
Americans by the British, but had been sold by the Ameri-
can company of its own free will. A British sloop of war
arrived subsequent to this transaction and found the British
company t» l^al possession tf iheir sdf-acguired property.
But, as in the case of Astoria, that ' not even the shadow of
a reflection might be cast upcm the good faith of the British
government,' the latter decided to make the restoration.
To prevent misapprehension as to tiie extent of the con-
cession, however, the British minister at Washington was
directed to inform Adams, United States secretary of state,
that 'whilst tiiis government is not disposed to contest
with the American government the point of possession as
it stood in the Columbia River at the moment of the rupture,
they are not prepared to admit the validity of the title of the
government of the United States to this sOtlement.

' In signifying, therefore, to Mr Adams the full acquies-
cence of your government in the reoccupation of the limited

t And oa Om braachfM wath of Urtitod* 49° m. Sm pp. 849-ja

FROM FUNDY TO JUAN DE FUCA 855

PostiioK which the United States held in that river at the
breaking out of the war, you will at the same time assert, in
suitable terms, the daim of Great Britain to that territory,
upon which the American aettlement must be considered as
an encroachment I '

'This instruction was executed verbally by the person
to whom it was addressed.' ^

In fine, the British statement maintained :

(i) The nature and extent of the rights acquired by the
United States from Spain, as well as the rights of Great
Britain, were fixed and defined by the Convention of Nootlca,
and that, in succeeding to the r^hts, the United States also
succeeded to the obligations which it imposed. (2) Admit-
ting the discovery of Gray, Great Britain had stronger
claims, on the ground of prior discovery attended with acts
of occupancy and settlement. Whether, therefore, the
United States rested their claims upon the title of Spain,
or upon that of prior d>«x>very, or upon both. Great Britain
was entitled to place her claims at least upcm a parity with
those of thu United States.

In the interior of the disputed area British subjects had
had, for many years, settlements and trading posts— on the
Columbia and on its tributaries, some to the northward and
some to the southward of that river— and had navigated the
Columbia ; whereas in the whole of the territory the citizens
of the United States had not a angle settlement or trading
post. Great Britain offered to make the Columbia the
boundary; the United States declined to accede to the
proposal. Such being the result, it only remained for Great
Britain to maintain the qualified rights she possessed ; these
rights were defined in the Nootka Convention and embraced
the right to navigate the waters of those countries, to settle in
them, and the right freely to trade with their inhabitants.

The statement concluded with a declaration that Great
Britain would give her subjects full protection, while ready
at any time to agree to a settlement that would not derogate
from her rights or prejudice the advantages that her subjects
then enjoyed.

* Am$nct» StaU Pttpm, FonigH Rilati<m$, iri p. 663.
VOL. VIII 2

li'-

856 BOUNDARY DISPUTES AND TREATIES

III

Statbmknt or the Unitbd States

The American statement declared that the Nootka
Convention was merely of a commerda't nature, and in
no way affected tiie queation of distinct jurisdiction and
exclusive sovereignty. It was difficult to bdieve, on read-
ing the treaty and reodlecting in what cause die con-
vention originated, that any odier settlements could have
been contemplated than audi as were connected with tiade
with the natives; it was only as being of a commercial
nature that the Nootka Cmivention could be positively
asserted as being in force, as only the commercial treaties
between Great Britain and Spain had been renewed by the
treaty of July 1814. Admitting that the word ' settlement '
was used in its most unlimited sense, the stipulations per-
mitted promiscuous and intermixed settlements everywhere
to the subjects of both parties, and dedared sudi settle-
ments made by either party in a degnt common to the
other— a state of things incompatible with distinct juris-
dicti<m and sovereignty. The amventitm, therefore, estab-
lished or changed nothing, but left the parties where it
found them ; leaving the questicm of rights, however derived,
to be settled later. As Great Britain even tiien claimed only
a right of j<nnt occupancy, leaving the rig^t of exclusive
dominion in abeyance, it was not evident how, at the same
time, it could be asserted that the pretensions of both parties
were definitely set at rest, and that it was only in its text
and stipulations that the title on either side was now to be
traced. Commerce and settlements might be made by
either party during the joint occupancy, but the right of
exclusive diominion over any part of the country had not
been extinguished, but cmly suq;)ended, and must revive
whenever that joint occupancy ceased. Whenever, there-
fore, a final line of demarcation became the subject of dis-
cussion, the United States had a right to appeal, in support
of its claims, not only to its own diKoveries, but to all rights
as successors in title to France and Spain, in the same
manner as if the Nootka Convention had never been made.

FROM FUNDY TO JUAN DE FUCA 857

T^ere were, by the uaage of natioos, continued the
Ameiican statement, two rulei leguktlng the rig^t of occu-
pation: (1) Prior discovery gave a rii^t to occupy, if
exercised within a reasonable time, and if followed by pet^
manent settlements and by the cultivation of the soil, (a)
The right derived from prior discovery and settlement waa
not confined to the spot so discovered or first settled. The
extent of territory which would attach to such first discovery
or settlement might not, in every case, be precisely deter-
mined, but it had been generally admitted that the first
discovery and subsequent settlement, within a reasonable
time, of the mouth of a river, particukriy if ncme of its
branches had been explored prior to such discovery, gave
the right of occupancy, and, ultimatdy, of sovereignty, to
the whole area drained by such river.

The American statement contended that, in the past.
Great Britain had not considered her charters as valid only
as against her own subjects, and, by excepting from the
grants lands already occupied by the subjects of other
civilized nations, it was clearly implied that they were in-
tended to exclude all other persons and n^-tions. Not only
had the whole country between Hudson Bay and Florida
draining into the Atlantic been occupied and held by these
charters, but the principle had been extended beyond the
sources of these Atlantic rivers. Thus, the rights of the
Atlantic colonies to extend beyond the All^hanies, not-
withstanding the prior Frendi settlements, had been effec-
tually and successfully enforced. While the two general
rules which had been mentioned mig^t often conflict, it
was the peculiar character of the daim of the United States
that it was founded on both principles, which, in this case,
united both in its support and converted the claim into an
incontestable right. In different hands the several claims
would have conflicted one with another, but united in the
same power they supported each other. The possessors of
Louisiana mig» t have contended for the territory on the
ground of contiguity. The several discoveries of the Spanish
and American navigators might separately have been con-
sidered as so many steps in the prepress of discovery, and

f 1

'!l

'- il

858 BOUNDARY DISPUTES AND TREATIES

giving only imperfect cUunu to each party. All thoM varioiu
claims were now brought united againit tlw pretenafaxu of
any othernation.

Respecting the title derived from the ccwion of Louiiiana,
the American atatement maintained that die actual powei
tioa and populous settlements of the valley <rf the Missiisipi^
constituted a strong claim to the westwardly extension of
tiuit inovince over the contiguous vacant territory as far
as the Pacifi& Crosat's grant was only for part of the
province of Louisiana. It was twunded on tiie west by New
Mexico and on the north by the Illinois. The grant did
not indude any brandies noith of the Missouri, the sources
of which were iu>t supposed to extend north of latitude 42' K.
All the territory north of 4a* N was included in the govern-
ment of New France, which on the most authentic French
maps extended over territory draining into the South Seas.
In 1717 the Illinois was annexed to Louisiana, and from that
time the latter extended as far as the most northern limit of
the Frendi possessions in North America,* and thereby west
<A New France. The limits between British and French
territories in that quarter were settied by the Treaty c^
Utrecht,' the line of demarcation following the 49th paraJlel.

The American statement contended that the United States
had an undoubted right to claim, by virtue of the Spanish
discoveries and of thdr own. It stated that prior to Cook's
voyage Perez had, in 1774, discovered Nootka Sound' and
sailed to 55" N, discovering Dixon entrance ; that Quadra had,
in 1775, explored the coast from 43° M to 54" N * ; and that,
in Spanish voyages of subsequent date, the coast was exptored
as for as 60* N. Juan de Fuca Strait was discovered in 1787
by Baridey. Meares and Vancouver failed to discover the
Columbia. It was entered by Gray, who ascended it for

> AUthateniteiybetwaenUMbuinoftlMlIiMiwippiaadthaHadaoii'tBay
Company'i territoria fanned pait of Mew France.
' Limit* were not eettled. Sen pp. 887^1.

* There is no evidence that Peret ligbted Nootka Sonnd, and he reached
latitude 54° m, not 33° m. Later Spanish expedition* reached 38* m, not 60° h.
The efiect on title wai mach diminiihed by the non-publication of these voyages
till after Cook's reports had been pablisbed.

* Quadra did not explore the coast between 48}* n and 54* ir.

FROM FUND / TO JUAN DE FUCA 859

twenty miles. The dieoovery of Gray* wm called by the
Britidi B»go6Mton only a j<«^ in the progreei of diacmrery,
•nd they alto attempted to divide its merit between him,
Means, and Vanooaver's officer : Meaics had not niggested
nor suspected the existence of a river ; Vancouver's lieutenant
had not the slightest share in the discovery. In 1805 Lewis
and Chu-k had eq>lored the Columbia from its most eastern
source to the mouth. Thus was the discovery of the river
commenced and completed by the United Stauis before any
settlement had been made on it or any of its branches explored
byanyothernation.' Even if Thompson had, in 1805. reached
one of the sources of the CdumUa north of 50* M, it could not
be seriously contended that this, compared with the com>
plete American exploration, would give to Great Britain ' a
title to parity, at least, if not priority of discovery, as opposed
to the Uniteid States.' In 181 1 the American establislunent
of Astoria * was commenced near the mouth of the river,
before any Britidi settlement had been made south of the
49th parallel.* As Astoria was seised during the war, it was
formally restored in conformity with the Treaty of Ghent.*

*<ThattlwditoM«nro<UM oatt of • livw it wtited to th* «(cliiaiva on
of«btriv«'aadthmf ttMtsdi • om of tha rivw wtitlw Um to th* pcopwty
of it* bMln . . . ia aa invaniM tba ocdiMir piiadplw of Mtmml tow, whiiA
rasards rivan ud UkM M appMiJafw to « tarritoiy. th* OM of which ia aKMMiy
for tha parfKt anjojrmwt of tha tenitocy, and righta of tanitacy ia tham only as
aeqniiad throagh lights of praparty ia Um baaka' (Twiia, Tkt Ortgon QittHon

£MHN'ttMt, p. 379).

I In 1800 Doaeaa MKiilUvny illicio»wail Un BUabarry Rivar, a bcmaeh of
tha Colombia. Prior to tta artahHahmant of Aateria tha Worth-Wart Cempaay
had buQt Fort Xbotaaaa aorth ot iatitndo 49* m, aad four poata— Xootaaaa
Falb, Knnyspeal Hooaa, Salaaah Hooaa aad Sptdaaa Hooaa-toath of it: aU
within the baaia of tha Coioaibia.

* Coocaraiag tha claim that Aatoria-aa iaaigaiiicaat tiadiag hooaa araetad at
tha mouth of a gnat rivar UIca tita ColnmUa—caxTiad with it tha titla of tha whoia
baaia of that rivar, it caaaafaly be said that itamodtn ion waa at laart qtMatioa.
able. To radoca tha coataatioo to aa abaardity, it to only nacaaaary to apply tha
aama theory to mighty riven like the Miniaaii^ aad Amaaoa.

* Aaalnadyatated,tiieBritiahNoith-WertCoDpaay had, prior to tha aractiaa
of Aatoria, at least foor poata aoath of latitude 49*.

* ' It is manifeat that the restoiation of Astoria under the tnaty, acoonliag
to the view for which Bayard had so eamaatly coateaded, waa wholly iacoa-
dosiveaa to rights of aoveieigaty over the mouth of the Columbia. Thequestioa
of poasesaioo befcne the war waa one of fact, and thia the United States waa aot
alow to raise' (Reeves, Diplomtey wtdif Tylir and Polk, p. ao8).

r f

860 BOUNDARY DISPUTES AND TREATIES

With dM varioiM cUtpstdM* to aad from dM oOom ol dM
Britbh fovtminent tha Unhsd SttitM had no conown ; the
onhr wfittm docunient kaowa to bt hi tha poawntoo of tha
Unitad Stataa waa die act of laatocatloB Itaelf , which contalna
no eaoe(>tioii, raaarvatloa or pcotaat iHiataver.

In fine, the American atatament maintained : that die
United Statee daimed it had fint diacovwad the Columbia s
that the disooveiy had been attended by rimultaneoos
oocnpation and pomeiiion and by aubaequent letdementa,
iriiidi had been interrupted only by war. Thia gave a
right to the whde country drained by that river, whidi
r^t, atrengthened by other Spaniah and American dia-
ooveriea along the ooaat, establiahed a atrooger title, at leait
aa far north aa btitude 49* N, than had ever been before
aiaertad by any nation to vacant territory. Aa ita exdu-
aive title originated in Gray'a diaoovery b 179a, the United
Statee had no motive for proteating the Nootka Omvention
b 179a Rtaptcdag the formality called 'taking poaaea*
tion ' of a country inhabited by Indiana who have no notion
of ' aovereignty,' the American plenipotentiary abatained
from making any remariEk Req)ecting the trading poata
(rf the North-West Company of Canada, they were only
eatabliahed after the United Statee title waa completed,
and, aa they were foctoriea unaccompentod by cultivation
and permanent aettlement, they coukl not give a good title.*

>^ewed aa a matter of mutual convenience, and to avert,
by a definitive line of limitation, any poaaible cauae of
colliaion, the American atatemeut aaid tiiat every ocmaidera-
ti(m amnected with the aubject ahouhl be allowed ita due
weight. After paying due r^ard to the British diacoveriea,
the line of demarcation o£Fered would aacrifice a portion of
the United Statee just claim. Under whatever aovereignty
the di^Mited area might be pkuxd, it would be almost exclu-
sively peopled from the United Statee. But three nations,
Great Britain, the United Statee and Spain, had the right
to cok>nixe the territory. The United States, having pur-
chased the rights of Spab, were foiriy entitied to two shares.

I Neither better nor wocm than Aatoria, axcept that tbdr occupation wm
oootinnoQ*, whenai Aitgcia ma very thacMhred.

FROM FUNDY TO JUAN DE FUCA 86i

No wttlemaiit, however, wm arrivwl at, and the ooo-
wtkn of 1837 extended the joint oGcupetioa indefiniteiy.

OocoBUNcn, i8ao to 1840

la iSai the rivalry between the North-Weit and Hudeoo'a
Bay COmpaniee waa ended by the merging of the fonner
in the hitter. In the Mune year an imp^ial act waa paaeed
extending the juriKlictioQ of the courts of Upper Canada
over Britiah subjects in ' other parts of America, not within
the limits <rf either of the provinces of Upper or Lower
Canada, or of any dvil government of the United States.'

In i8at a committee of Con^^ess recommended a bill
for the ' occupation ot the Columbia and the i^ulation of
the trade with the Indians in the territories of die United
States,' > but no action was taken on this report. In
President Monroe's message. December a, 1823, he dedaied
that the occasion had been judged proper for asserting that
' the American continents, by the free and independent con-
dition which they have assumed and maintain, are hence-
forth not to be considered as subjects for ftituie cokmizatioa
by any European powers' *

In I8a4 General Jessup, in answer to a request from a
se»cwi; committee of Congress, sent a letter recommending
the erection of forts at the mouth of the Columbia and at
intermediate pdnta between Council Bluffs and the Pacific.*

President Moaxoe in 1824 and President Adams in 1835
recommended the establishinent df a military post at the
mouth of the Columbia. No action was taken, however.

On August 6, 1837, a convention was signed extending

> ' TlM ttnu ol th« Un an dinetljr at vuiuwa with Um pravitioiu of tha
third articl* d Um oMnwtioa tt Oe* • t iSiS, brtwMB tha Uaitad Statw and
GnatBritaia: MthaCofauablaoiMkliMlpoMibfybaAwMif 0««Nl»a«MM«b.
cMhm. md lAittU tf httk mMmm, if it wm cftupi*4bf aithar* (Gmidww!
HitlMytfOrttommndCM/bmis,p.3st). — ««w.

* iS»—tumidPaptne/lk*I>ntuUal$,a.p.ao9. ' Agaiaat thia dacUimtian,
which— howavar Jut and poUtie micht hava baaa tha priadpla aaaoiuiGad—
waa aaqoMtiaaably iapradmt, or at laaat pnoatttw, tha Britiih and tha KoMiaa
tovwanMiiti aavmUy pcolartad' (Graanhow, Uinory of Ongcm and CmliJbmU.
P-336).

* 'Aiu>tharp«blieatioa,aqnaU]rimpoUtieoathapattofth«AiiMdeaan««m-
■Mnt • (Gnanbow, Hidory o/Ontom md (Mifimttm, p. 33Q.

- !

iH:

} .

-^}

862 BOUNDARY DISPUTES AND TREATIES

the joint occupation indefinitely, but subject to termina-
tion on twelve months' notice by either party.

In 1828 a bill was introduced into Congress authorizing
the president to establish forts, make explorations and
extend the jurisdiction of the United States over the territory
west of the Rockies between the parallels of 42** N and
54* 40' N. The bill was finally rejected in January 1829.

The merging of the North-West Company in the Hudson's
Bay Company in 1821 proved highly advantageous to the
latter. Great efforts were made to obtain a monopoly, and
so successful were they that the Americans were forced to
abandon the fur trade in the interior and to withdraw their
vessels from the coasts. Competitors were either driven
out of the market by goods being offered to the Indians at
much lower prices than the Americans could afford to take,
or were taken into the company's service.

In 1842 Lord Ashburton arrived at Washington. He
had specific instructions for the settlement of the Oregon
boundary as well as other differences between Great Britain
and the United States, but the Maine boundary was more
pres-sing, and Webster feared that if an attempt to settle
both boundaries were made, the whole of the negotiations
would fall through. In his message of December 6, 1842,
President Tyler said that he would ' not delay to urge on
Great Britain the importance ' * of the early settlement of
the controversy.

Though no action had been taken, and though Lord
Aberdeen had, in the following August, again urged that
negotiations be initiated, President Tyler, in his messages
of December 23, 1842 and of December 5, 1843, referred
to the negotiations in the same inexact language.*

> Lord Aberdeen wrote Fox that tie Britiah government had ' obeerv*!
with mrpriae and regret a pangrmph in the President's lata message to Congrese,
which, if not directly at variance with fac«^, is at least calculated to mislead. . . .
It would have been more candid had he also stated that he had already received
from the British government a pressing overture to negotiate an adjustment of
differences with respect to the Oregon Territory,' and that he had responded to
that overture in the same conciliatory spirit in which it had been made (Blsa
Book, Corrtspond4nct nlativt to tkt Or*gon TtrrUory, p. 3).

' ' The inference drawn from the President's expressions by all who are
anacqoainted with the real sute of the case . . . mnst stiU be, that the President

FROM FUNDY TO JUAN DE FUCA 863

In 1844 John C. Calhoun became United States secretary
of state. As he had, in the previous year, advoca<»'c; a
policy of 'wise and masterly inactivity,' he opr:v?ed any
proposition for the occupation of Oregon on the gi und that
it would precipitate war with Great Britain. H at'opted
Gallatin's * idea that time was fighting on the si !o of the
United States. Though his views were not changed, he
was 'peremptorily ordered' to negotiate with Pakenham
and to endeavour to effect a settlement on the line of the
49th parallel. Pakenham, however, refused to concede
the territory north of the Columbia. In November 1844
Lord Aberdeen instructed Pakenham to propose arbitration,
but before he could do so Tyler sent a message to Congress
recommending the establishment of military posts across
the continent, and the extension of the federal laws to protect
Americans in the Oregon. On January 21, 1845, Calhoun
declined the offer of arbitration on the ground that it ' might
rather retard than expedite its final adjustment.'

In May 1844 the Democratic convention met at Balti-
more. One plank in their platform was popularly trans-
lated 'Fifty-four-forty or fight '—latitude 54" 40' being
the initial point of the boundary between Russian America
and the Oregon territory. Knowing the opposition of the
North to any extension of slave territory, and being deter-
mined to annex Texas, the Democn-ts saw in Oregon a
counterpoise to Texas and an area that, owing to difficulty
of access, would be peopled much more slowly. On this
platform Polk was elected.

In his inaugural message, March 4, 1845, President Polk
stated it would become his duty to ' assert and maintain
by all constitutional means the right of the United States

hu been occupied in urging upon Her Majerty'i Govwnment u eariy mM*.
ment of the Oregon Question ; and that Her Majesty's Government, on their
part, have either been inattentive to the urgency of the question, or reluctant to
proceed to an adjustment o< it ' (Fox to Aberdeen, Corrttp<md*nc4 r$isUv* to
tMt Oregon Ttnilory, p. 6).

> In 1826 Gallatin wrote Oay that, as Great Britain considered the tarritory
as open to the first occupant, all • that the United States might want was the
very object which Great Britain declared to be hen, vii., the preservatim of
peace until ... the whole country was occupied ' {Amtietm SW PM>tr$.
Fortign Rilatioiu, vi. p. 680).

VOL. VIII ,^

86 \ BOUNDARY DISPUTES AND TREATIES

to that portion of our territory which lies beyond the Rocky
Mountains. Our title to the country of the Ottfpin is clear
and unquestionable.' Pakenham again urged arbitration,
hoping tile new administration mis^t reverse Tyler's deci-
sion. In July James Buchanan, United States secretary of
state, proposed the 49th parallel to the Pacific, any port
or ports on Vancouver Island south of that parallel to be
made free to Great Britain.

Pakenham flatly declined the proposal, and expressed
the hope that the United States would offer some further
proposal 'more consistent with fairness and equity, and
with the reasonable expectations of the British Govern-
ment.' Polk then withdrew his proposition, and proposed
to claim the whole territory.* Buchanan was anxious to
continue the negotiation, but Polk opposed, believing that
there was no probability of adjusting the subject. Upon
learning Polk's attitude Pakenham withdrew a conciliatory
note that he had delivered. In his message, December 3,
1845, Polk stated that he had withdrawn his offer of a com-
promise and that the title of the United States ' to the whole
Oregon Territory ' had been ' asserted, and, as is believed,
maintained by irrefragable facts and arguments.' * Late
in December Buchanan told Polk that the next two weeks
would mean peace or war. In January 1846 Louis M«Lane,
United States minister at London, reported that Great Britain

?:'■

* ' Th* only wmy to tcMt John Bun,' said Polk to a Sooth CvoUn* mtmbet
of CongreM, ' was to look him atiaight in the qre. I couiderwl a bold and fim
cooTM on onr part the pacific mm ' (Folk's Dimry, Jannary 4, 1846).

* ' It was certainly an nnnsnal thing— perhaps naprecedented in diplomacy—
that, white negoUatkna were depending . . . one of the parties should anthori-
tativaly declare its ii(^« to the whole matte* in dispnte, and show itsaU ready
to maintain it by aims. The dadantion in tite iaaagnral had ita natnial efleet
in Great Britain. It loosed the British ^irit as high as that of the AaMricaa.
. . . The new administratioa felt itsdf to be in a '<'i«m»"« To stand upon
34-40 was to have war in reality; to recede from it, might be to incnr the penalty
laid down in the Baltimara ptetform. . . . The secretary [Bochanaa] seemed to
expect some fnrthst propoeition from the British govetnuwnt; bat none «-"«ti
The rebuff in the inaognral address had been too pnbUc, and too violent, to
admit that government to take the initiative again. It said nothing ; the war
cry continued to rage ; and at the end of four months our government found
itsdf nnde* the necessity to take the initiative, and rscommence negotiatioos
as the means of avoiding war ' (Beaton, Tkwty Yitn' Vi«m, ii. pp. 661-3).

I ^^

FROM FUNDY TO JUAN DE FUCA 865

was making extensive preparations for war. Polk announced
that, while he stood for 'fifty-four degrees forty minutes,'
he would refer my suitable proposition to the Senate— a
hint that an offer of forty-nine degrees would be accepted.
On April 38 Polk gave notice of the abrogation of the
joint occupation convention, and, when transmitting it,
Buchanan invited the British government to make a pro-
posal for a settiement. Knowing that Polk would accept.
Lord Aberdeen instructed Pakenham to offer the 49th
parallel, reserving to Great Britain the whole of Vancouver
Island and the navigation of the Columbia.

The Oregon Treaty

On June 15, 1846, Richard Pakenham, on the part of Great
Britain, and James Buchanan, on the part of the United
States, signed at Washington the so-called Oregon Treaty.

Article I defined the boundary as following the 49th
parallel from the Rockies to ' the middle of the channel
which separates the continent from Vancouver's Island ; and
thence southerly through the middle of the said channel,
and of Fuca's Straits, to the Pacific Ocean : Provided, how-
ever, that the navigation of the whole of the said channel
and straits, south of the forty-ninth parallel of north latitude,
remain free and open to both parties.'

Article II provided for the free navigation of the Columbia
River. Articles in and iv provided that the possessory
rights of the Hudson's Bay and Puget's Sound Agricultural
Companies should be respected and that, if possession of
their lands were desired by the United States, they should
be transferred to the said government at a proper valuation.

Before the treaty was signed Polk referred it to the
Senate. In the message accompanying it he said, that, as
the Senate was not only 'a brandi of the treaty-making
power,' but also ' of the war-making power,' it was proper
to take the advice of that body in advance upon a question
which might involve the issue of peace or war.* In endea-

> ' Thiu he evmded all iwpoosibaity tor the compromiae line. He made it
appear that the ptopoMl lor rach a letttoment came wholly from Great Britain.
It was tme that the officM propouU did to come, bat not until Polk had let it be

i j

iji
Hi

866 BOUNDARY DISPUTES AND TREATIES
vouring to effect a settkment he was much hampered by
his own utterances and by the Baltimore platform that
had earned hun mto power. While nominally insistinK
on the extreme claim, he endeavoured to prepare the pubUc
nund for a recession to 490 n. Haywood and B^ton*
senators friendly to the president, contended that the
president was not so far committed against the latter that

«tSlJ v"*J uT* ^^ "f°° '*• Eventually the Senate
ratofied it, the Whigs and moderate Democrats outvoting the
extremists of the latter party. ^

Settlement m the Deputed Area
Before discussing the settlement it is necessary to glance
bnefly at the development of the disputed area prior to the
sigmng of the treaty.

The first serious attempt to bring land under cultiva-
tion was made m 1828, in the Willamette Valley, by time-
expired servants of tlie Hudson's Bay Company. In 1834
Methodist missionaries established themselves in the same
region. Although assisted by Dr John M'Loughlin. the
governor of the Hudson's Bay Company in the territory
west of the Rockies, they opposed the company, and plotted
to deprive M»LoughUn of his prior claim to the water-power
at the falls of the Willamette." «=wawr power

nndeiBtood by Aberdeen and Palnnham that he would not leiect it He cait
upon the Senate the responsibiUty for the compromiM. wamlS^ howe^

H-K^il^w***' !!L^ •P*^' "^P** ^^"^ °P« *»» ' Rfty-fonr-Fortie^' a* he
dabbed the «ta«n»tj. He «ud : • R„«U i, „ot there, bounding „, ^S Z^
yrtj^t mato. no difler««. in the phao«,phy of our Fif^-^^^

ifTim*; .'~'; °" .*^* ^' « """y to fight. Their notion^ SS
we go jam up to n' 40', and the Ruariana come jam down to the lame W^.

^J^J^^' °r*^ "«« to put down a paw. litho^^ pTwI^i^
N«er tt« the «le of the doV. foot whir^mghtT^rting-JSn^ Nolh^
^ Thumu,t.eem.Uttle.tr«.getoBritid.\Se,m«rwhSdo^7^
a. to .^aveall knowledge W.ind them ' (Beaton. Tkirfy Ysar,' V^,^^.^*

^WW^'^K'^^rS:'*'^ by which «« m«nbm of the Meth.^t iSl
^^J?r ^^ to the man who h«l pux,„«l one unva^couTTf
S^^« ^T ?"" countrymen for eight years with no^SrW^

FROM FUNDY TO JUAN DE FUCA 867

Linn introduced into the Senate in 1842 a bill authorizing
the adoption of measures for the occupation and settlement
of Oregon and for the exercise of jurisdiction therein. The
discussions m Congress and the missionary eflPorts resulted
m a pronounced immigration. In 1843 one thousand im-
migrants arrived and were reUeved by M'Loughlin. The
goieral condition of the new colonists was one of destitution.
lUey were people of pronounced character, rudely arrocant
and aggressive.' In 1844 fourteen hundred people crossed the
plams. The condition of these immigrants on arrival at their
destonation was worse than that of the immigrants of 1843.

In 1845 three thousand persons arrived, doubling the
white population. In 1841 an attempt was made to form
a provisional government. In 1843 a legisUtive committee
was appointed, and laws respecting the judiciary and land
r/o7 *^?P5«^- In '845 a legislative committee approached
M«Loughhn and proposed that he should unite the Americans
m the government compact. It was urged that this action
would secure the property of the company and conduce to
the maintenance of peace and order. M«Loughlin yielded,
and on August 15, 1845, with his Ueutenant, James Douglas,
TOnsented to become a party to the articles of compact.
Bancroft says that he deemed it prudent to yield, as in
June he had received from the company in London ' a com-
mumcation informing him that in the present state of affairs
the company could not obtain protection from the govern-
ment, but it must protect itself the best way it could.' He
must also have been influenced by the expectation that
his action would enable him to hold the land that he had
tatenup.

A few days after M'Loughlin and Douglas had given
tt«r adh^on to the provisional government, Captain Park,
R.N., and Lieutenant Peel, R.N., son of Sir Robert PeeL
amved. The former brought a letter from Admiral Seymour,
commanding the British squadron in the Pacific, informing
M«Loughliii that he would afford protection to British 8ul>
jects in Oregon. This was undoubtedly the turning-point in
the dispute. Not only did Park and Peel report this fatally
compromismg action by the chief representatives of the Hud-

«68 BOUNDARY DISPUTES AND TREATIES

ion's Bay Company, but M'Loughlin aanired them and even
wrote to England that the country ' was not worth a war.'

Largely tiuough M«LoucUin's assistance there were, in
1846, about 7000 American settlers as compared with only
400 British, outnumbering the latter by eighteen to one.
The remarks of Warre and Vavasour, though not received
by the British government till after the treaty was signed,
indicate the state of affairs in Ongon viewed from a
British (Standpoint.' Lieutenant Peel arrived in London
in February 1846, bearing the repoit of Captain Gordon,
brother of Lord Aberdeen. Gordon's ' report also censures
the Hudfeon's Bay Company.

■

Rsvnsw OF TBB Sbttlbmeht

^ The settlement, under the existing conditions, was a
fair and reasonable one. It concluded differences that had,
on several occasions. Drought the two countries to the verge

• ' Whatever may Iwve been the ordeti, or the motivet of the gentleman in
charge of the Hndion'f Bay Company'i poeti on the wert of the Rocky Moua-
taina. their policy has tended to the introdnction of the American settUn into
the country.

•We are convinced that without their aniitanee not 30 American tmn,m^
voold now have been in the settlement

« The first immigraticms, in 1841 or 184a, arrived in so miserable a condition,
that, had it not been for the trading posts of the Hudson's Bay Company, they
must have starved, or been cut ofi by the Indians. . . . The agents of the Hudson's
Bay Company gave every encouragement to thsic settlement, and goods wete
forwarded to fha Willamette Falls, and retailed to these citixens of the United
States at even a mora advantageous rata than to the British subjects.

< Thus encouraged, emigrations left the United States in 1843, 1844 and 1843,
and were received in the same cordial manner.

•Their numbers have increased so rai»dly that the British party are now in
the minority, and the gentlemen of tiie Hudson's Bay Company have been obliged
to join the organisation, without any reserve esoept the ir «re form of the oath of
office. Their lands are invaded— themsdves insulted— and they now require
the protection of the British government against the very people to the introduc-
tion of whom they have been more than accessoty ' {Doatmtnts r$lttiv4 to Warn
and Vm)attmt'$ MtiUary Riamiutuumet m Ot^, 1845-6 ; QunUrly of tkt
OrtgoH Hittufietl SocUly, x. pp. 81-3).

« Gordon is reputed to have been so disgusted because the Columbia salmon
would not rise to a fly, that he reported that ' the country was not worth a damn.'
Bancroft (ndx. p. 499) says 'not worth a war,' but thefoimerU the commonly
accepted version. The story, however, rests upon no certain basis, and is,
abnost certainly, one of the numerous crop of fables current respecting tt^-h and
every boundary dispute.

FROM FUNDY TO JUAN DE FUCA 869

^ vnr, but, of coune, was not utitf actory to the extremist!
of either party in Orq;on. It was not satisfactoiy to tiie
I»o-American party, tnasmudi as they were not conceded
toe right to seize without compensation the property of the
Hudson s Bay and Puget's Sound Companif- • it was not
satisf«;tory to the Hudson's Bay Company, inasmuch as
they foresaw that, wiA as antagonistic territorial govern-
ment and populace, the monopoly of the trade would soon
pass from them. The attitude of Great Britain throughout
va» a dignified one, ignoring the petulance and unieaaon-
able claims of the Americans,* conceding that the United
States had certain rights and being prepared to offer a
boundary that was equitable and even generous; willing
to make concessions such as ports on Puget Sound and free
access thereto, but, until overwhefaned 1^ the immigration
from the U-uted States, standing by the Columbia River
as an irreducible minimum. It must be borne in mind,
also, that in this matter the government of Great Britain
was in great part merely supporting the Hudson's Bay
Ownpany. The action of MeLoughlin, the virtual governor
of the great North-West, in joining the provisional govern-
ment fatally compromised the company, and it is by no
means a matter for surprise that, after Goidon's report had
been received. Lord Aberdeen decided to abandon the
British claim to the mainland south of latitude 49* n. If
the Hudson's Bay Company was content to accept the
enstmg government— so strongly pro-United States that
annexation to, or absorption by, that country was only a
question of time— is it surprising that British diplomats
concluded a treaty that apparently conserved the interests
of the company so far as they themselves, apparently,
desired them conserved ? • Canadians are prone to accuse

\'^r.^^^ IHndwi'. Bay Ca) in Ongoo, held ttat . . . to tht settle-
."«**?• ^■^**' f*»*» J-d been tre«t*J by En^Md, who* peopto couM .ftxd
tt^mndi «. • Und pamt tnete « waywwd cUld. And to thU ttey •«» ridkt.-
far had En^and been m nnmionable. overbeaitoc. and totnlttoc m tte DeoDte o<
tt. Unit«l Stat... the« M«,dly w^TSnTbeen y^'lSZS'f^l^
*««• VP- 596^). •

4-«' **T^.!?.'^ Diplomacy MMbr Tyltr tmd PM, pp. .63.4, nun. np a.

«>o BOUNDARY DISPUTES AND TREATIES

Great Britain of Mcrifidng Canadiam Itrritory, fofietting
that in 1846 Canada did not exerdae juriadiction in the
weatera half of the continent, and that, had any one pre>
dieted that in a quarter of a century Canada would extend
from ocean to ocean, he would have been regarded aa an
irreqxmaible viaionary.

The diapute waa virtually aettled on the principle that
* e£Fective occupation ' conatitutea an unaaaailable title. It
ia alao intereating to note that the diviaion of territory waa
practically baaed on the ' Hinteriand ' * idea— nearly forty
yeara before that doctrine waa put forward aa a principle of
international law. That it waa the part of wiadom to effect
a aettlement waa demonatrated ten yeara later, when the
Fraaer River gold rush reaulted in an influx into Britiah
Columbia of thouaanda of American minera and of the
undeairable daaa of dtizena who accompany auch ' ruahea.'

what ha had lo often rafnaad. Bat waa Polk't fimuiaia tba canaa of tha paacafnl
and fair aattlamaat ? Had Fldmantoa baan ia Abardaan'i podtion at the time
«i Folk'a " flrm " pnmomioanwnt, Polk iiil(ht have loat Oregon. That tba
Dragon qoaation waa aettled ia tha maanat it waa ia one of the ^oriea of tha
admittittration of Sir Robert PaeL Aberdeen'a laiga-mindadnaaa and oonaiatant
baUaf that tha friandahip of Om United Stataa waa wvrth mnch mora to Great
Britain than a few dagraaa of latitude on the PadAc coaat an raapoaaible for tha
aettiament that Folk thooght to gain by a firm policy. That Aberdeen waa
" blnilad " by Folk ia abaord. Peal knew that ha oonM not retain office after
tha repeal of the Cora Lawa, and it waa tha part of grwt itatasmanahip not to
leave to hia ancceaaora in oOoa an impMtu that had been bronght aboat daring
hia adminiatratioa. Feel coold aot go iato oppoaition with a war of hia own
craationaponhiahanda. He would not aggravate the warlike faelinga of England
for tha porpoae ot maintaining hia bold apon office. If'Laae waa cociactiy
adviaed of Feel'a attitnda when AberdMn aeat Fakaoham hia iaatroctiona to
pfopoaatbecompromiaalina. He wrota to Bochaaan that Ped'a miniatry woald
laaign betora the end of Jaae, aad that ia caaa tha aaw piopoaala were not accepted
promptfy, the new miniatry might aot agree to aa favoorabto terma. Upon tha
day that tba Peel adaUaiatration raalgned, newa came that tha Unitad Statan
bad agreed to Aberdeea'e oflhr of aettlement, and tha aacond great boaadary
cootroverty with tha moUiap«oaatry waa at an end.'

> Richard (Mney, Uaited Statea aecretary of atate, in a commonication to Sir
JaUaa Faoacefote. Jane 93, 1896, atated that ' It can not be irreievaat to remark
that " apharaa of infloance " and the theory or practice of the " Hinterland " idea
are tiiinga nnkaown to intematieaal law and do not aa y«t reat apon any racog-
niied prindplee of either intematiaaal or monidpal law. They ar« new dapar-
toree which certain great Eoropean powera have found neoeaaary and convenient
in tba cootm of their diviaion among themadvea of great tracta of the continent
of Africa, and which Ibid their sanction scdely in tiieir radprocal atipnlatiana '
(Moore, A DigtU of InUnmHomU Lam, i. pp. 368-9).

fiii

'^1

FROM FUNDY TO JUAN DE FUCA 871
Itfa not too much to My that, lud it occumd befoie the
tt^ty of pwtitioa vu iigned, the province would probably
have been kwt to the Britidi crown.

San Juan Contkovbsst

Hardly was the ink on the Oregon Treaty dry before
differences aroM respecting the identity of tae 'channel
which separates the continent from Vancouvei 4 ishuid '
The British government claimed the eastern channel,
Rosano Strait, and the United States contended for the
western channel, Haro Strait.

Attempta were made to settle the question by negotia-
tion, but were unsuccessful. Meanwhile settlere were occupy-
mg the territory, and the consequent danger of collisions was
•teaddy increasing. In 1848 Crampton, British minister
at Washmgton, proposed ' to the Government of the United
States to name a Joint Commission for the purpose of mark-
ing out the north-west boundary; and more particuhirly
that part of it in the neighbouriiood of Vancouver's Island.'
I?.'j5^c^™"P*°" **P<«ted hw proposal. To this the
Umted States government assented. Captain James C
Prevost, R.N., and Captain George H. Richaids, R.N., wei^
appcnnted commissioner and second commissioner respec-
tively on the part of Great Britain, and Archibald Campbell
was appomted commissioner on the part of the United
States. At their first meeting, June 27, 1857, they exhibited
their rnpective commissions. Campbell's instructions em-
powered him to determine the boundary-Une from the
wmmit^ of the Rockies to the Pacific, whereas Captain
Prevost 8 powers were limited to the determination of the
water boundary.'

They held sbc meetings, but failed to arrive at an i^ree-
ment. The British commissioner contended that the channel
mentioned shouM possess three characteristics :

• I. It ahould separate the continent from Vancouver's
Island; 2. It should admit of the boundary line being

•For dotaUs of tb* ooatoHtoM brtwaw PMvont ud Ounpbdl Me BriMt
tmi FonigH State Pa/mt, Iv. pp. iaii4t8. *^

VOt. VIII

i^^

'^1
'J

«73 BOUNDARY DISPUTES AND TREATIES

carried through die middle of it in • aoutherly diicctioo.
3. It ahould be a navigable channel.' He admitted that
the Haro Strdt waa navigable, but contended that, from
the rapidity and variablenete of ita current and lack of
anchon^ee, it would generally be avoided by eailing vcMels,
which would prefer Roeario Strait, a waterway UMd by the
Hudaon's Bay G>mpany since 1835. He argued that the
Haro Strait did not aeparate the 'continent from Van*
couver's Island,' the continent ah'eady having been aepaiated
from that island by another navigable channel— Rosario
Strait ; that a line drawn through Haro Strait must proceed
for some distance in a westerly direction, whereas the treaty
required that it should proceed in a southerly direction ; and
that, although there were islands east of Roasrio Strait, there
was no navigable channel between them and the continent.

The American commissioner claimed that Haro Strait
was the deepest and widest of the chtumeb connecting Juan
de Fuca Strait and the Gulf of Georgia, and was the one
usually designated on the maps in use at the du^ of the
treaty. Other diannels merely separated islard i irom each
other ; Haro Strait, since it washed the shores of Vancouver
Island, was the only one that separated the island from the
continent. The word ' southeriy ' was only used in the treaty
as opposed to ' northerly,' and was used with referraoe to the
line through Juan de Fuca Strait, where it runs a?x>ut west-
north-west. He argued that contemporary evidence demon-
strated that Haro Strait was proposed by Great Britain and
accepted by the United States, and quoted the correspondence
of American authorities as to their understanding of the article.
He said that the only claim by Great Britain that Rosario
Strait was intended was contained in the note of Crampton
to James Buchanan, of January 13, 1848, and that the claim
that Rosario Strait was the only one that had been surveyed
and used was obviously erroneous, as Haro Strait had been
aurveyed and used by Spain and the United States.

In reply the British commissioner stated that M*Lane
and Benton, quoted by Campbell, were not the actual n^o-
tiators of the treaty ; that AfLane merely said that the
proposition would ' most probably ' be made ; that it was

FROM FUNDY TO TUAN DE FUCA 873

not made, and that the failure to name it was evidence that
Haro Strait was not intended. ' He quoted Pkum's map
of Oregon and Upper California, published in 1848, and ' a
diagram of a portion of Oregon Territory,' by the surveyor^
general of Ongpn, dated October at, 1853. In both maps
tile boundary was drawn through Rosario Stiait. He
further said that he had been oflidally informed ' by high
and competent authority'* that Rosario Strait was the
duuinel contemplated by the British government in the
treaty.

liie American oommiaaioner, in reply, stated that Preuss's
map was inaccurate, and that neither it nor the surveyor-
general's map had any official relation to the boundary
question. He quoted Arrowsmith's map of 1849, in which
Haro Strait was indicated as the boundary. He also adverted
to the fact that the Earl of Clarendon did not disclose the
authority upon which his statement was based.

The British commissioner then offered, without preju-
dice, a compromise line which would give San Juan Island
to Great Britain, and the other islands, Orcas, Lopez, etc.,
to the United States. Thou^ this offer would have con-
ceded two-thirds of the area, the United States commis-
sioner refused to entertain it. This offer was made in
accordance with qiedal instructions to Captam Prevost,
instructions which were not exhibited in the first instance
to Campbell. It was therein stated tiiat a 'middle' line
would pass just eastward of the Matia group, and being
prolonged from thence neariy due south would pass through
Rosario Strait into Juan de Fuca Strait. It appeared, it
was said, that this line was so cleariy and exactly in accord-
ance with the terms of the treaty that it might be hoped
the American commissioner would accept it, but, if he
refused it, the British commissioner was at liberty to adopt
any other intermediate channel that was 'substantially
in accordance with the description r>f the Treaty.' *

In 1859 a pig belonging to tie Hudson's Bay Company

* Eari ci daiwidaii, Mciataiy for Fonifa AfEkin.

• Bin* Book, Nortk-WMt Amtriemt Water BonnJary, Rtpty oi the Uaitod
StetH . . . pwiiiuliiJ to Hii lUjwty the Emperar of Gennany, p. 41.

i I

■: (

:||i| ^

#74 BOUNDARY DrSPUTES AND TREATIES

WM ahoc by an Ameriam dtiaan on Sm Juan— om of the
iduids in diqwte. On the ttnngth of a atatement by the
Ameikan that an oAoer of the company had tiuvatenad

to amat him and taha him to Victoria for tiial-^«dikh waa
denied by tiie officeiv-CenefBl Harney, commanding Oregon

district, landed United Stateatroopa on the idand; a redoubt
was coostnicted, and, but for the forbearance of Admiral
Baynes, war would have been precipitated by General
Harney and some of his ' fire^ting ' offioerk This action
was promptly protested by Great Britain, and General
Scott was instructed to proceed to Washington Territory
and arrange a modus vkmdi. An arnuigement for a joint
occupation by one hundred British and one hundred United
States tro(^ was concluded.

During I8s9 and i860 several fiiiitless attempts were
made by the British government to induce the United States
to refer the question to arbitration. On January 14, 1869,
Lord Clarendon and Reverdy Johnson concluded a convention
for arbttntion by the president of the Swiss Confederation,
but the United States Senate failed to ratify it. In 187 1 an
attempt was made to settle the question by tiie Joint High
Commission, but without success, the American commis-
si<men declining the British offer of the compnmiise line.

By Articles xzxiv to xui of tiie Treaty of Washington,
May 8, 1871, it was provided that the req)ective claims
of Great PW .'n and the United States to Roaario Strait
and Haro ^ • ut diould be submitted to the arbitration
and award ot the German Emperm-, who should ' decide
thereupon finally and without appeal rrhidi of thore claims
is UKMt in accordance with the true interpretation of the
treaty of June 15, 1846.' Owing to the contentious attitude
assumed by the United States, this question was one of the
moet troublesome that the Joint Hij^ Commission had to
deal witii, and 'came near precipitating an unsuccessful
termination of its labours.'

The case for Great Britain was prepared by Admiral
James C. Prevost, and the case for the United States by
George Bancroft, United States minister at Beriin. The
United States case was delivered at the Foreign Office,

SAN JUAN WATER BOUNDARY

> -» tn-'^t '^-^ , »

LBCBIIO
■MaiMT «ai«iMI Mr ty CtM mmIb.
MMM kr kr OMM IMtM.

' •wMtM tr ArMtrMw, OM. nit, un.

A. UnW^ lllipflili.] WlltnW

;in

s '1

Ai ,

*>»«<««< V J-m^ fmu. rses. ^^^, ,^ ■.fan,^ «^ Jto iH.w«».-

i,:i

It*

*fn

• *(

FROM FUNDY TO JUAN DE FUCA 875

Beriin, <m December la, 1871, and the Britiah caae on die
I5tli. The second statement ot Great Britain was presented
on June 10. 187a, and that of the United Sutes on the nth.

AWASD OP THB GbBMAN EmPBSOB

On October ai, 187a, the emperor rendered his award
that the claim of the United States for Haro Strait was
'most in accordance with the true interpretations of the
treaty ' of 1846.

The Britidi government was severely criticized for agree*
ing to limit the arbitration to the Rosario and Haro diannels
instead of asking the arbitrator to determine which channel
Wtes meant in the treaty.* As insisting upon it mig^t have
wrecked the whole treaty, the criticism was not justified,
tiiough such a reference would probably have given Great
Britain San Juan and Waldron, leaving Orcas and Lopez to
the United States.

The arguments and the evidence adduced by the con-
tending parties show that the evidence by both sides was
of an inoondumve nature, and, in general, consisted of ex
parte interpretations of discussions and correspondence.
The Ongoa Treaty was concluded hastily, bodi nations
fearing that actions of its subjects woukl precipitate a con-
flict ; and there is no reason to believe that the negotiators
intended the boundary to be drawn elsewhere than is stated
in the treaty, viz., * the middle of the channel which separates
tiie continent from Vancouver's Island.' An examination
of the diart shows that the ' mid-diannel ' line fdknra
ai^rozimately the compromise line offered by the British

> EuldeGny,intlMRoaaaofLon]a,JmMi3. i87a,ind«f«diiigtttTk«sty
ot Wadiiagtaa, Mid tiiat tt* Emri a< DKby adoptwl u wwjr mod* of criticUiig tlM
ttMty ia mpaet o< <iawtk)in which ba did not dMiiw to dJacoM by BMNfy dadariag
that tfaqr war* d no importaiiM and that thayoonld ba latUad with Uia ntmort
iadlity. ' My noble friand,' «id Eari da Gray, ' took a* an iutanoa tiia caaa of
tha island of San Juan : bat ao far ttom that qoaatiao biing aatOad wifli tha
ntwiat fKiUty, it was oaa of ttoaa wUch carnad na tta gnataat tRNibla. Tha
Unitad Stataa commiarioMn laisad gnat dUBcoltiaa on tha ■objact, and wa war*
oUigad to iaiiat itrooi^ apon tha viawa ot Hat Majarty'a Govammant with
iaipaettoit'(Haniafd,cevii863: qnotad in lioata'a /iitonMftMMl ^yMiralMM.
Lp.M7).

876 BOUNDARY DISPUTES AND TREATIES

commianonera, except that it would have been more fovour-
able to Great Britain as regards some of the small islands.

On Mareh lo, 1873, a protocol was signed at Washington,
by Sir Edward Thornton and Admiral Prevost on the part
of Great Britain, and by Hamilton Fish on the part of tiie
United States. The boundary-line was drawn on four
identical charts and was defined by a series of counes from
the mainland to the Pacific.

Hudson's Bay Compamt Claims

In the portion of the territory that fell to the United
States in 1846 the Hudson's Bay Company had tb'rteen
esublishments, and the Puget's Sound Agricultural Company
—an accessory organization— two. After the passage of the
act establishing the territory of Or^;on the companies found
their position increasingly precarious. They were harassed
by peculiar constructions of the revenue laws ; their cattle
were shot by travellers, as game ; the lands surrounding the
Hi'dson's Bay Company's forts and the Puget's Sound Cbm-
pauy's forms were covered by American squatters, on the
ground that the possessory rights of the company would
expire with their charter ; they were refused reparation when
they appealed to the courts; the rig^t to navigate the
Columbia was rendered valueless by the interpretation that
the words ' on the same footing as citizens of the United
States ' permitted the levying of customs dues on merchan-
dise imported for trade. The companies finally offered to
dispose of their interests to the United States.

On July I, 1863, a treaty ' for the final settlement of the
claims of the Hudson's Bay and Puget's Sound Agricul-
tural Companies ' was signed at Washi^;ton by Lord Lyons
and Wimam H. Seward. It provided for the appointment
by each government of a commissioner 'for the purpose
of examining and deciding upon all claims ' arising out of
the provisions of the treaty of 1846. It further pixnrided
for the appointment of an umpire— to be chosen by the
commissioners. Sir John Rose was appointed commissioner
on the part of Great Britain, and Alexander S. Johnson <«

FROM FUNDY TO JUAN DE FUCA 877

the partof the United States. Benjamin R. Curtis was selected
asumpiie.

The Hudson's Bay Company daimed ;£879.850 or
l^33i>937> and the Puget's Sound Agricultural Company
jC340,ooo or |i,i68,ooo. On September 10, 1869, the com-
missioneri rendered their award. They awarded the Hudson's
Bay Company $450,000 and the Puget's Sound Agricultural
Cmnpany (300,000 ' as the adequate money consideration
for the transfer to the United States of America ' of all their
possessory rights and claims.

SUKVBYS OF THE BOUMDAKY

Article i of the Or^on Treaty, 1846, provided for the
appointment of a commissicner and a chief astronomer by
eadi of the subscribing governments, to mark and determine
the boundary-line between the summit of the Rockies and
the Strait of Georgia. In 1857 Archibald Campbell was
app(»nted commissioner, and Lieutenant John G. Parke
duef astronomer, on the part of the United States. In
1858 Colonel J. S. Hawkins, R.E., was appointed first com-
missioner, and Captain Geoige H. Richards, P.N., as second
commissioner and chief astronomer, on the part of Great
Britain. In view of the great expense involved in marking
the whole boundary, the commissionen decided to determine
it only at stream crossings, settlements, etc., by astronomical
observations, and to mark the line in the vicinity of the
observation stations. Of the 410 miles 190 miles were
cleared and marked. The field work closed late m i860
or early in 1861.

In 1870 it was discovered that ' the commonly-received
bound^ line between the United States and the British
possessions' at Pembina was 4700 feet south of the 49th
parallel. In 1872 Major D. R. Cameron, R.A., was
apptHiited commissioner on the part of Great Britain, and
Captain S. Anderson, R.E., diief astronomer. On the part
of the United States, Archibald Campbell and Colonel
Farquhar were appointed commissioner and chief astronomer
respectively. In 1873 Cok>nel Farquhar was succeeded by

-i

V i

878 BOUNDARY DISPUTES AND TREATIES
Captain W. J. Twining. The fidd woik was completed in
1874 and the final proceeding! were signed on May 29, 1876.
The treaty between Great Britain and the United States
iHgned at Washington, April 11, 1908, provided for the
demarcation of the boundary between Canada and the
United States. Wm. F. King was appointed commissioner
on the part of Great Britain, and O. H. Tittmann on the
part of tiie United States. Articles vi and vn provided for
the surveying and marking of the line between Lake of the
Woods and the summit of the Rocky Mountains, and ftom
the latter point to the Gulf of Georgia. The work is com-
pleted (1913) with the exception of a few miles west of Lake
of the Woods. Article vm provided for the delineation
upon accurate charts of the boundary frwn the 49th parallel
to the Pacific Ocean. The field work is (1913) completed,
with the exception of the point at which the line leaves tiie
49thparaUeL

ONTARiaMANITOBA BOUNDARY

RisUlftf OF DiFFBKENCBS

THE Quebec Act, 1774, defined the western boundary
of the Province of Quebec as extending horn the
confluence of the Mississippi and the Ohio, 'north-
ward to tiie southern boundary of the territory granted to the
Merchants Adventurers ot England trading to Hudson's Bay.*
In 1791 Quebec was divided into Upper Canada and
Lower Canada. The division line commenced at Pbinte an
Beaudet on Lake St Francis ; thence northward to the
Ottawa River ; thence up the Ottawa to the head of Lake
Timiskaming, ' and from the head of the said Lake by a line
drawn due north until it strikes the boundary line of Hudson's
Bay, including all the territory to the westward and south-
ward of the said Une to the utmost extent of the country com-
mmly coiled or kmowH by the name of Canada:

In 1870 an imperial order-in-council was passed pro-
viding for tiie surrender to Canada of all the territorial tights

ONTARIO-MANITOBA BOUNDARY 879

and cbdins of the Hudson's Bay Cbmpany. Prior to the
surrender Ontario's clainu to a large area north and west
of Lake Superior had been preferred by authorities. After
the transfer, settlement commenced in die diq>uted aica,
and a dedsfon respecting the conflicting claims of jutisdic-
ti<m became necessary. The matter was referred to arbitra-
tion, and in 1878 the award was deliveied fixing the northern
boundary at the Albany and English riven, and the western
at a due north and south line from the north-west ansle
of Lakeof the Woods.

Before the award couki be confirmed the Mackenzie
administration was defeated at the polls. The new adminis-
tration claimed that the award was recommendatory only,
and refused to accept it. In 1881 the Dominion passed an
act extending the boundaries o: Manitoba. The eastern
boundary was a contingent line, and was defined as a due
north line from the intersecticm of the western boundary of
Ontario and the international boundary between Canada
and the United States. The Dominion government con-
tended that the western boundary of Ontario was the pio-
bngation of a due north line from the confluence of the
CMiio and Mississippi, and that the hd«^t-of-land between
the waters of the St Lawrence and Hudson Bay formed the
northern boundary. The dispute was referred to the im-
perial Privy Council, which in 1884 ~«nfiinned the award of
the arbitration of 1878.

Having briefly sketched tiie differences, it is necessary to
retrace our steps and examine the various acts of state,
etc., affecting this dispute.

• i

n?'*',

HimsoK's Bay Coupant's Chaktbk, 1670*

On May a, 1670, Charles u, ' being desirous to pimnote
all endeavours tending to the public good of our people, and
to encourage ' tiie undertaking, granted to his * dear entirely
bebved cousin, Prince Rupert' and his associates 'and
their successors, the sole trade and commerce of all these
seas, straits, bays, rivers, lakes, creeks and sounds, in what-

> SM"Tlie"Advwtnnn"af Hmbao'tBay'iaMctiM i.
▼OL. vni ,g

■ . J

880 BOUNDARY DISPUTES AND TREATIES

never latitude they iluU be, that lie within the entrance
of die strait!, oommonly called Hudton'a Straitt, togedwr
with all the lands, and territories upon die countries, coasts,
and oonEnes of the seas, bays, lakes, rivers, creeks and
sounds aforesaid, that are not already actually possessed by
or granted to any of our subjects, or possessed by the
subjects of any other Christian Prince or State ... and
that the said land be from henceforth reckoned and reputed
as one of our plantations or cokMiies in America, called
"Rupert's Land."'

This rJiarter to the ' Governor and Qmipany of Adven-
turen of Enghnd trading into Hudson's Bay ' or, to use
die common form, die ' Hudson's Bay Company,' in so for
as it was implemented by effective occupation, formed the
basis of the company's territorial daims to the territory
drainmg into Hudson Bay. To determine the limits of the
area to which they had perfected their title, it is necessary
to review the vicissitudes of the company from the date of
die charter to die Treaty of Paris, when die whole of New
France passed to the British crown.

DiSCOVBBIBS AMD SSTILBIIBNTS IN THE BaT

Hudscm in 1610-11, Button in 1612-13, Bykrt and Baffin
m 1616, Fore in 1631, and James in 1631-33, made voyages of
discovery to Hudson Bay, giving England a tide by virtue
of discovery. In 1668 Gillam erected Fort Charies (Rupert)
for Prince Rupert and his associates. Fort Nelson was
founded 1^ die Hudson's Bay Company in 1682, and at
the same time Radisson, representing the French Compagnie
du Nord, established Fort Bourbon in the vidnity. In the
^ring following Radisson seized Fort Nelson, but in 1684,
having re-entered the service of the Hudson's Bay Company,
he retook it for the English. The relative status of the
claims of England and France as a result of these occurrences
is not very clear, but, from the summer of 1668 till the
surrender to d'IberviUe in 1697, die English could at least
claim that they had effectively occupied the territory in dispute.

The Frendi company resolved to expel the English
subjects who had intruded in what it considered its pre-

ONTARIO-MANITOBA BOUNDARY 88t

Thoui^ it WM a tune of profound peace, a Frendi
force, under tiie Chevalier de Troyes, wt out fnm Cciiada
in the spring of 1686, and captured Fort Hayes (Moose).
Rupert and AltMny, the Hudson's Bay Qunpany's poets
oa die soutiiem portion of Hudscn Bay.

Trbatt or Nbotsautt. 1686

The state of affairs was intoterable, and James n and
Louis znr sought to nudce America neutraL On November
16, 1686, the Treaty of Neutrality was signed at Londcm. It
provided for a ' firm Ptece ... as well by Land as by sea,
between the British and French Nations in America, as well
Northern as Southern,' etc.

Articles iv and v provided that :

IV. Both Kings shall have and retaili to themselves
all the DcHninions, Rij^ts and Preeminences, in the
American Seas, Roads, and other Waters irfiataoever,
in as full and ample manner as of rig^t belongs to them,
and in such manner as thw now possess the same.

V. And therefore the Subjects, Inhabitants, Mer-
diants. Commanders of Ships, Masten and Mariner^ of
the IQngdoms, Provinces and Dominions of each King
respectively, shall abstain and forbear to trade and fish
in all the Places possessed, or wfaidi shall be possessed
by one or the other Party in America, viz., the King of
Gnai Britain's &ibjects shall not drive their Commerce
and Trade, nor fiah in tiie Havens, Bays, Creeks, Roads,
Shoals or Places, ¥^idi the most Christian King hdds,
or shall hereafter hold in il«Mr»ca : And in like manner,
the most Christian King's Subiects shall not drive their
C(Mnmerce and Trade, nor fiaa in the Havens, Bays,
Creeks, Roads, Shoals or Races, idiich the King of Great
Britain possesses, or shall hereafter possess in America.

Article zvin provided that ' if any Breach should happen
. ..between the said Crownsinfuro^, .. .noactof Hostility
eidier by Sea or Land ' should be committed in America by
the subjects of either.

When the treaty was signed, while the English held Fort
Nelson a French force occupied Fort Albany, and, under
die provisions of Article v, the Frmdi were virtually con-

t j|

88j boundary disputes AND TREATIES

fimwd in tiidr poMtiion of the KNithem portkio of the bey.
In addition, thejr were conceded die rigjht to ftdi and trade,
in common with the Britidi lubjects, in Hudion Bay, caoept
hi tile vidnity of tiie lingle poet held by the Hudnn'e Bay
Company, vis. Fmt Ndaon.

Commiaiionen were appointed to cncute die treaty.
The HudKm'i Bay Company petitioned tiiem for compenM-
tion and for the nirrender by tiie French <rf tiieir poets,
•hifw, etc. The Britidi commiarionen filed a statement
setting forth the claim of Great Britain, by virtue of dis*
coveny and occupatiou, 'to Hudwrn's Bay an'' Territories
thereunto bdonging.' The Frendi oommissionen in reply
dalmed: tiiat Champlain had taken finssrsiiaii of tiie
territory; tiiat French subjects had erected forts and traded
with tiie Indians prior to tiie advent of British traders;
that the latter were obliged to enlist the services of Radisson
and Groseillien, two deserten from tiie French company ;
and that, inasmudi as the French had a prior title, tiie treaty
was inoperative against France. CommisBions, letters patent,
acts of poueession, etc., were dted, but <mly by an eztra>
ordinary effort of the imagination could they be considered
as applying to the Hudson's Bay territory. Respecting the
statement that Jean Bourdon had, in 1656, entered Hudson
Bay and taken possession, it has been demonstrated that
he Mily readied a point on tiie Labrador coast in latitude
55* ^' Similariy, witii reference to .oe statement that Sieur
Couture, a misskmary, had in 1663 reached tiie bay and
taken posaessicHi, the Jesuit ROations prove that the fint
Frendiman to readi the bay from Canada was Father
Alband, in 1673. The statement of Radisson that he
reached the sea from Lake Superioi- is not, hi tiie oiMmon
of the writer, worthy of credence.

In August 1687 the Frendi commlssbnen offered to
surrender the three forts— Albany, Moose and Rupert—
that tiiey had taken from the Hudson's Bay Company m
exchange for Fort Nelson, hdd by the totter. This arrange*
ment was suggested as the most convenient for the two
companies, as each long had resolved not to cede to the
other the ownership of the whole bay. This pioposition

ONTARIO-BfANITOBA BOUNDARY 883

was rejected by the Hudno's Bay ComiMny. It replied that
* it CBimot but Mem itniige and diMonant from all reaaon that
the Frendi CommiMioiien ahould now oome to oBer tiie aaid

Company didr own, idiidi they took by violenoe in exdiange
for anodier part of their own, which tiw Frendi had never
had any colour of tigfit to.'

Thia attitude waa endoned by the Britiah commiMionen,
^iho, on November 16, 1687, infbnned the Frendi com*
miaaionen that the Idng. Jamea n, had matiudy ooniidered
tiie matter and tiiat he

doth, upon the irfiote matter, conceive die aaid Qmipany
wdl founded in thdr denuuida, and haUi therefore
ordered ua to insist upon his own riaht and the right of
his subjects, to tiie whde Bay and Strdg^ts of Hudson,
and the sole trade therecrf, as also upon the demand of
full aatiafaction, for the damages dbey have recdved,
and restitution of die three FcHts surprised by the Frendi.
We are also ordered to declare to the French Com-
misMonen diat His Majesty hath given us powen and
directions to enter into a Treaty with the said Com-
missioners, for the adjusting of limits between die
DominicMis of both Crowns in America, and doing
everything dee that may conduce to the removingiS
occasicHi <A differences between die two nations.

On December 11, 1687, die ownmisaionerB executed an
agreement stipulating that

until thdr said most serene Majesties shall send any new
and express orders in writing concerning this matter :
it shall not be lawful for any Governor or Commander
in Chief of die colonies, islands, lands and territories,
bdongin^ to ddier King's d<Miiinions being in America,
to onnmit any act of hoetOity against or to invade die
subjects of die odier Kjum;, nor shall die said Govemon
or Commanders in Chief upon any pretence whatever
suffer diat any vidence be doae to them under cofpcwal
punishment and penalty of makii^ satisfacticm with
thdr goods for the damages arising by sudi contravention
nor diall ary others do die same under die like penalty.

As the Duke of Yoric had been governor of the Hudaon's
Bay Company from 1682 till his acoesuon as Jamea 11, and

•«4 BOUNDARY DISPUTES AND TREATIES

•^ o«pMy had made him • pfBMot of ihawt, hk «^
pnringly iidepndent and detmniMd tooe ia uadrntudabfe.

•rtrtjifah iti claim to icpaimtloa for damagw, it waa deemed
advinble. at the begiuiing of William m'a tctgn. to procure
an act of parliament confirming the diarter of Chariea n
for seven yctrk

LeM^ eleven montha after the encution of the asree.
ment of Deoimber ii, 1687, William of Onnge landed at
TortMy, and James 11 waa a fugitive.

Upon the acceMion to the throne of William m and
Mary the Hud«»'k Bay Company renewed its claima for
oompMaation and for the surrender of its forts. One of
the articlM of the declaration of war against France, May 7,
1689, declared that the French king did 'possess hinudf
of our Territories ... of Hudson's bay, in a hostile manner.
Mising our Forts, burning our Subjects' Houses,' etc.

In 1693 the company recaptured Fort Albany. In 1694
^IT^^^^Z'^}^^*^ In 169^ the English retook
£• ^ !S!? " *" *•*• ^^"o'^K yew. It was heki by the
French till surrendered in 1714, in amwdance with th«
terma of the Treaty of Utrecht.

Tmaty op Rtswick, 1697

(^ September 20, 1697, peace was conchided at Ryiwick.
Articles vu and vm provided that

The Most Christian Mng shaU restore to the said
King of Gnat Bntam, all Countries, Islands, Forts and
Cotonies wheresoever situated, which the EmgUsh did
POSMss before the Declaration of this present War : and

S **fe "fi5?'.*'\« ^"? °' <^«»< B^^ AaU restore to
the Most Christian King aU Countrys, Islands, Forts
and Colomes, wheresoever situated, which the Frenek did
possess before tiie said Declaration of War. And this
Institution shall be made on both sides, within the nace
of sue months, or 8<x>ner if it can be done. And to that
end immediately after the Ratification of this Treaty.
??-5L** f"** J^"*" "haU deUver, or cause to be
ddiver-d to the other, or to Conucissionen authorized

ONTARIO-MANITOBA BOUNDARY M5

In his Namt for tiiat puipoM, all Acts of rniifisdim,
Instrumenti, and necMMiy Ordan, dufy made and in
proper Fonn, 10 diat diey may have dicfr Effact

VIII. CommiMiooen aiiall be ^^pointad on bodi
■Idea, to examine and determine tlie R^ts and ?to>
tenaiooa wliidi cither ol the eaid Kinga hadi to the
Plaoea lituated in Hmlson's Bay : But die PbeacMion
c^ dioae PUcea whidt were talcen by die Ameik during die
PaaM diat preceded diis prewnt War, and were retaken
by the EMglish during thia War. ehaU be left to the
Frmcft by virtue of the foregoing Artide.

Article vin alao provided for the appointment of corn*
miadoneri to determine the boundary between Englieh and
French territory.

The terms oi die treaty, if carried out, would have been
disastrous to the Hudson's Bay Con^ary. Not only waa
it silent respecting any compensation, but, as Albany was
one of the places taken by the French during the peace and
retaken by the English during the war, the fort should have
been surrendered to the French. Under it the company
ooutd claim Fort Nelson only.

Commissioners were tippointtd under die provisions of
Article vni. The Hudson's Bay Owipany and the Com-
pqnie du Nord filed atatements of daim. On April 39,
1700, the French ambassador proposed ^t France shouM
keep Fort Nelson, and England Fort Albany, the boundary
to be half-way between die two forts and the limits of Acadie
to extend to die River St Geoige. Or, he would have agreed
that Fort Albany ahoukl remain with France, and Fort
Nelson with Eng^d, the boundary to be midway, but in
that case he demanded that ' the limits of France, on the
side of Acadie, shouki extend to the River Kenebec.'

On July 10, 1700, the Hudson's Bay Company submitted
a statement to the Lords t^ Trade and PlanUtions. After
atating that they were willing to accept the foUowing limits,

in case of an exdiange of places, and that the Company
cannot obtain the whole Streights and Bay, wbidi of
right belongs to diem, viz. :
I. That the French be limited not to trade by wood-

1:!

. ;■'

J -At

••6 BOUNDARY DISPUTES AND TREATIES

a. That tiM Frandi b« UktiriM UttHai not to trad*

Ssss.^,sissjsr' '^' "^^ ~^

to the Hudioa'a Bay Company. -«««»■

bywood-niMoi, oc otbenriK. nor bufld any iSaZ

SStSrffy'SS:^ "^ •-«» '^^ »-^

Ai thii ooamutnicatioa, modified by the bter one ol
£!S21^'^'L**^ the bad. of the eettlement of the
nortb« hajnd^ie. of Ontario ^ Qud^c. h ha. been

The Lord, of Trade replied raqtMcting the company to
jrtate whether Cf the Franch iefu«d^1S»pt SnS
it would cooKnt to an erteneioo to latitude saK'H. iS
^S^^,' f^J""^ ^ *7oi, agreed to accept the Canum
(Eartmain) River-4atitude 5a' 14' M-a. the boundary 00
tfaecaetooait '

TtMATt or Utucbt.

1713

wa. only «ded by the Treaty of Utwcht, MarchaTi*!*.
Article X of the treaty provided that: ^ ""^ * »7i3.

X. Themidmort Christian King dian reetora to tiie
WjWdomand Queen^Gjeat BriSS, tobe^SiSl iJ

togefter w^ aU land., mm. Macoa.t., riven, and placed
iituata fa tiie mid bay and ^SSStoTandwhich faoi3

'll

fmpMrml fy .Kumw tnu», f K.6.S.. i^rmi{y A

aMfMrntlr thr "Ctmada and A> AwWiuw.

ONTARIO-MANITOBA BOUNDARY 887

thereunto,^ no timcts of land or (^ sea being excepted
which are at present posKssed by the subjects of France.
All which, as well as any buildings there made, in the
condition they now are, and likemae all fortresses diere
erected, eidier before or since the Frendi sdzed the same,
shall, within six months from the ratification of the
wwent treaty, or sooner, if possible, be weU and truly
dehvered to the British subjects, having commission
from the Queen oi Great Britain to demand and receive

the same But it is agreed on boA sides, to determine

withm a year, by commissaries to be forthwith named
Inr eadi party, the limits whkh are to be fixed between
toe said Bay of Hudson and the places appertaining to
the Frendi ; whith limits both die British and French
subjects shall be iididly forbid to pass over, or thereby
to go to eadi other by sea or by land. The same com-
minaries shall also have orders to describe and settle,
in hke manner, the boundaries between the other British
and French colonies in those parts.

Article xi stipulated for compensation to the Hudson's
Bay Company for its losses.

During the discussion of the terms of peace, difficulties
arose respecting the use of the terms ' cession ' and ' resti-
tution,' but the British plenipotentiaries insisted on the use
of the latter. The French negotiators contended that the
clause proposed by the British ' that France shall restore not
only what has been taken from the Ei^Hlish, but also aU that
Enghmd has ever possessed in that quarter ' «'ould be a source
of perpetual difficulties. They ther^ .^resented a map
upon which they had indicated the ooundary proposed by
them. Upon this map the British negotiators had also indi-
cated their claim. Prior, in a dispatch to Lord BoUngbroke,
January 8, 1713, says there was no very great difference.'

During the proceedings before the commissioners appointed

' ' TImk were two otigiaaU of thia Ttaaty, one in L*tin and the oQter in
FwBch. TW« ti«MUtioBUtli»tpnbli»hed by authority of tiieEn^iahGovwtt.
mmt at the time. The wprmion here rewtoted " and which briong thereunto "

ie in the Latin copy, " ^)ectantibn« ad eadem," and, in the French. " et Henx Qui
en d^wndcnt " ' (Ontario-Manitoba Boondaiy Caw, Joi,a App,ndiM, p. J04 n.).
«• Aa to the Umitt of HndKm's Bay. and what the miniitiy hm Mm to
apprehend, at least in virtue of the genenl fxpntAm kmt c* mu VAnghhm »

i«-i«« ^,«*M d« « rf« tt (which thv a«ert to be whoBy n«r. and whidh 1 think
TouTiii ,n

888 BOUNDARY DISPUTES AND TREATIES

under the Treaty of Utrecht, no mention of this map was
made, although Prior's diqmtch indicates that in January
1713 >t was in the hands of the British.

On February 7, 1712, the Hudson's Bay Company, in a
memorandum to the Lords of Trade, claimed as the boundary
a line from Grimington Idand, on the Atlantic coast in lati-
tude 58K* N, to the south end of Lake Mistassini. The
memorandum is silent, however, respecting the line from
Lake Mistassini westward, and it is a fair inference that the
non-appearance of the map later may have been due to
the (act that the British claim biifore die treaty was not as
extensive as it was q/iter it. Seareh was made for the map
during the preparation of the Ontario-Manitoba Boundary
Case, but without success.

On August 6, 1713, Louis xiv ordered the surrender to
• the bearer of the Queen of Great Britain's order, the Bay
and Streights of Hudson, together with all buildings and
forts there erected, in the condition they now are, with all
the cannon and cannon-ball, as also a quantity of powder.'
On August 4, 1714, the Hudson's Bay Company made repre-
sentations to the Lords of Trade respecting limits, urging
the boundary to be fixed at a line from ' the said island of
Grimington, or Cape Perdrix, to the great lake, Miscosinke,
alias Mistoveny [Mistassini], dividing the same into two
parts, . . . and from the said lake, a line to run southwestward
into 49 degrees north latitude ... and that that latitude be
the limit ; that the French do not come to the north of it nor
the English to the south of it.'

On September 3, 1719, George i signed the commis>

it nally to, iiiiM oar Fl«nipotaati«riM mato no mantioa of it), may giv* u
occaiioB to wwwch at any tiinaBpoa their dominioM in Canada, IhKVMwwd,
that dnoe, aoeocding to tha emrU which eama from oar FlenipotentiariM, markad
with tha axtant of what was thoaght oar Dominicii, and retained by the FtmA
with what they judged the extent of theUe, tiieia was no vety great difiatenoe,
and that the partiaa who detaimiaad that diiferance, moat be guided by the
tmrnemlt, I thought the article wouM admit no diqmte. In caaa it be either
determined immediatdy by the Flenipotentiaiiea or lefaned to CammiMiaiien,
I take leave to add to your Lordahip that tiiaae T'mJtatioBt ate no otherwiie
advantageous or pnjodidal to Great Britain than ai we are better or wone with
the native Indiana, and that the whole is a matter rather of industry than
dominion. H there be any real difference between wrtOirfien and t#»«<m,jii»rfl»r^*
(Ontario-Manitoba Boundary Case, Joint ApptniiM, p. 301).

ONTARIO-MANITOBA BOUNDARY

889

rions of Daniel Pulteney and Martin Bladen aa Britiah com-
miaoaxiea under ^e Treaty of Utrecht. Bladen waainatructed
to endeavour to get the limita claimed by tiie Hudaon'a Bay
Company, and to tain especial care in wording the articles
upon limits, that 'the said boundariea be understood to
regard the trade ef the Hudson's Bay Company only ; that His
Majesty does not thereby recede from the tight to any lands
in America, not oomprvwd within the said boundaries ; and
that no pretention be thereby given to the French to claim
any tracts of land in America, southward or south-west of
the said boundaries.'

He was also instructed to insist that a settlement made
by the French since the Treaty of Utrecht, ' at the head of
Albany River,* * should be demolished.

On November 8, 1719, the British cbmmissaries filed with
their French colleagues a memoir on the subject of boun-
daries. It waa practically in accordance with the limits
defined in their instructions except that the initial point was
the North Cape of Davis Bay in latitude s6yi'* instead of
Grimington Island in latitude sSyi", and that they demanded
that the French 'shall not build forts, or found settlements
upon any of the rivers which empty into Hudson's Bay,
under any pretext whatsoever, and that the stream, and
the entire navigation of all the said rivers, shall be left free
to tiie Company of English merchants trading into Hudson's
Bay, and to such Indians ab shaU wish to traffic widi them.' *

Cotonel Bladen is quoted by Chief-Justice Draper as
writing from Paris, in 1719, that there waa a ' difference of
two degrees between the last French maps and that whidi
the [Hudscm's Bay] company delivered us,' which indicates
that, south of James Bay, the French claimed to approximate
latitude 5I^

t Tliia danand waa UiMrtad at tba imtanoa oi the Hadioa'a Bay Camptaf.
Mo mich pott bad been oonatrnctad, and the lefanaoe waa probably to the Kami-
nittigaya poit (oa the site o( the ptewnt city of Fort WUUam, Oataiio). aateb-
liihed by Siear de U MonS in 1717.

• Thaae ehaafta were probably what Bladen had in mind when he wrote
Delafaye tiiat ' we dengn to give in the daim of the HndKui'a Bay Company,
in writing, with somt ftm tUHumt prttfy mtaUruJ far tM$ir ttniet {ArbUraUoii
JDeemmUi, pp. 416.17). (ItaUci not in original.)

890 BOUNDARY DISPUTES AND TREATIES

The oommiasarin on both ndM accuw eadi other ol endea-
vouring to avoid a meeting for the aettlement of the boundary
question. The British demands had increased since die
Treaty of Utrecht, and were unreasonable. It was certain
that the French would not accede to them, and, in all i»o-
bability, Pulteney judged the situation correctly when he
wrote:

I must own that I never could eqiect much success
from this Cdmmiasi<m, since the Frendi interests and
oure are so directly <^poaite, and our respective pre-
tentions mterfere so much with eadi other . . . That
the Frendi have not been willing to entertain us now and
then with a Ccmference . . . cannot, I should think, be
accounted for, but by supposing tiiey knew we came
prepared to reject all their demands, and to make very
considerable ones for ourKlves.

Two memdn by M. d'Auteuil, procureur-general erf
Canada, indicate the Frendi claim. They were probably in-
tended to form the basis of a reply to the British demands,
but were never delivered. D'Auteuil contended that, as
the Treaty of Utrecht only restored Hudscm Strait and Bay,
the line of separation should commence at Cape Bouton
(Chidley) at the entrance to Hudson Strait; thence to
pass half-way between the French fort Nemiskau and the
EngU^ fort Rupert ; thence to a pdnt half-way between
Abitibi fort and Moose fort ; thence, ' continuing, at a amilar
distance from the shores of the Bay, at the western side,
until beyond the rivers of Ste Thbckat (Hayes) and Bourbon
(Nelson).'

Comte de la Galissoniire, in a memoir on the French
cofonies in North America, December 1750, says: 'The
Treaty of Utrecht had provided for the appointment of
CbmmisdonerB to rq;ulate the boundaries of Hudson's Bay ;
but nothing has been done in that matter.' He also claimed
that, as the English ' never had but a few esteblishmente
on the sea coast, it is evident that the interior of the
country is considered as bdonging to France.'

In the private instructions to Marquis de Vaudreuil,
April I, 1755, it is steted that ' Although there had been

ONTARIO-MANITOBA BOUNDARY

891

questioo on different f jocukms . . . ot naming other Com-
miasbnetB in executicm of the Treaty [of Utrecht] the English
had ahvayi eluded it.' The Due de Chotteul in 1761, refer-
ring to the boundaries of the Hudson's Bay territories, said :
' Nothing was done.' This is conclusive evidence that no
agreement was arrived at, and the question was still in diqmte
when Canada was ceded to Great Britain.

From 1744 tiU t' e Treaty of Aix-Ia-Chapelle, October 18,
1748, the two countries were at war. Article v of the Treaty
of Aix-la-Chapelle provided that 'All the conquests, that
have been made since the commencement of the war . . .
either in Europe, or the East or West Indies, or in any
other part of the worid whatsoever, being to be restored
without exception.'

Tkbaty of Paris, 1763

After a year of open hostility war was declared in 1756 ;
Canada was surrendered by Vaudreuil, 1760, and formally
ceded to Great Britain, by the Treaty of Paris, February 10,
1763. By Article iv Louis zv ceded

Canada, with all its dependencies, as well as the Island
of Cape Breton, and aU the other islands and coasts in
Ae &ilph and River St Laurence, and, in general, every-
tiiing that depends on the said countries, lands, islands,
•nd coasts, with the 80ver^;nty, propoty, possession,
and all nghts, acquired by treaty or otherwise, whidi the
most Christian King and the crown of France, have
had till now over the said countries, islands, hndf, placn,
coasts, and their inhabitants.

Article vn defined the western boundary as ' a line drawn
along the middle of the river Misossippi, from its source to
the river Iberville, and from thence, by a line drawn along
the middle of this river and the lakes Maurepas and Pont-
chartrain, to the sea.'

Great Britain thus became possessed of practically the
eastern half of North America, and it was therefore in-
cumbent upon her to provide for the government of this
immense area.

893 BOUNDARY DISPUTES AND TREATIES

The Pkoclamation of 1763

On October 7, 1763, George m issued a royal proclama-
tion erecting four governments— Quebec, East Florida, West
Florida and Grenada. The boundaries of the government of
Quebec were defined as follows ;

Bounded on the Labrador coast by the River St John,*
and from thence bv a line drawn from the head of that
river, through the Lake St John, to the south end of the
Lake Nipiasim ; from whence the said line, crossing the
River St Lawrence, and the Lake Champhun in forty-five
decrees of north latitude, passes along the Hi^ Lands
which divide the Rivers that empty uemselves into the
said River St Lawrence from those which fall into the Sea ;
and also along the north coast of the Baye des Chaleurs,
and the coast of the Gulph of St Lawrence to Cape
Rosiers, and from thence crosung the mouth of the
River St Lawrence by the west end of the Island of
Anticosti, terminates at the aforesaid River of St John.

To avoid friction between the ootonists and Indians, the
governors of Quebec, East Florida and West Florida were
forbidden to make grants of lands or surveys beyond the
bounds of their respective governments. The proclama-
tion also placed under the king's 'Sovereignty, Protection
and Dominion ' for the use of the Indians all territories not
included in Quebec, East Florida, or West Florida, 'or
within the limits of the territory granted to the Hudson's
Bay Company, as also all the lands and territories lying to
the westward of the sources of the rivers which fall into the
Sea from the west and northwest as aforesaid.'

The Quebec Act, 1774

In 1774 an imperial act (14 Geo. iii, cap. 83), commonly
known as the Quebec Act, was passed. The preamble ledted
that whereas, by the proclamation of 1763, ' a very large
extent of countiy, within which there were several colonies
and settlements of the subjects of France . . . was left,

' It iaUt into the St lAwranceopiioaite the WMtcniestnBityci<'.''iticwti Island.

ONTARIO-MANITOBA BOUNDARY

893

without any provision being made for the adminittration
of Civil Government therein,' etc., it was enacted that *all
the Territories, Islands, and Countries in North America,
belonging to the Crown of Great Britain, bounded on the
south by a line from the Bay of Chaleurs ... and along
the bank of the said [Ohio] river, westward, to the banks of
the Mississippi, and northward to the southern boundary
of the territory granted to the Merchants Adventurers of
England, trading to Hudson's Bay.' It also provided for the
annexation to Quebec of the so-called Labrador coast-strip.

In the same year, 1774, a commission was issued to Sir
Guy Carleton as governor of Quebec. In it his govern*
ment is described as extending from the confluence of the
Ohio and Mississippi, 'northward along the eastern bank
of the said river [Missisuppi] to the southern boundary ' of
the Hudson's Bay Company's territories. The order-in-
council, approving the draft of Carleton's commisrion, states
that it reappoints him with ' such powers and authorities as
correspond ' with the Quebec Act.

I-

Thb Constitutional Act, 1791

In 1791 the Constitutional Act authorized the division
of the Province of Quebec. On August 34 in the same year
an imperial order-in-coundl established the Provinces of
Upper Canada and Lower Canada. The division line was
defined as a line from Lake St Francis to the Ottawa River ;
thence up the Ottawa to the head of Lake Timiskaming;
thence by a line drawn due north until it strikes the ' boun-
dary line of Hudson's Bay, including all the territory to the
westward and southward of the said line, to the utmost
extent of the country commonly called or known by the
name of Canada.'

The same phraseology is followed in the commission of
Lord Dorchester, 1791, and of others ; but, in the commis-
sion of Baron Sydenham, 1840, the line is drawn due north
until it reaches the 'shore' of Hudson Bay. The change
of wording is evidently due to a misconception, a half-
century later, by a draughtsman who proposed to ' improve *

' I'
f:

aw BOUNDARY DISPUTES AND TREATIES

ths phraieology. The ordefwin<oouiicU of 1791 was in.
tended— Ul» tiie Quebec Act— to carry the diviaion line to
the aouthem boundary of the HudKm'a Bay territoriea. The
Privy Council in 1884 waa in doubt, but finally adopted
the contention of counael for Ontario that ' boundary line *
aignified ' ahore '—unquestionably an error. Apparently no
one pointed out to it that, in the eighteenth century and
later, the term * Hudwn's Bay ' was a convenient terri-
torial designation of the area aasumed to be granted to
the Hudson's Bay Company, and that it was actually so
designated on the Mitdiell map before the councU.

If further proof were needed, it is su{^lied by the descrip*
tion of the proposed partition line, prepared at the request
of Lord Dorchester. The Une is therein described to the
head of Lake Timislcaming :

thence running due north to the Boundary of the Terri-
toiy granted to the Merdianu Adventurers of EngUnd
tradii ; to Hudson's Bay. The Province of Upper
Canada to comprehend all the Territories, Land, and
Countries «*ich are now subject to, or possessed by His
»^}^ty,to the westward and southward of the said
partition hne ; and the Province of Lower Canada to com-
prAend all the Territories, Lands, and Countries which
are now subject to or possessed by His Majesty, to the
eastward of said partition line, and to the soudiward
of the Southern B<nindary of the said Territories granted
to tte Merehantj Adventurers of England tiading to
Hudson 8 Bay, being no part of the Government of
Newfoundland or any other of His Majesty's Provinces
m North America at the time of passing of this Act.

This descripticm of the boundaries had been prepared at
the express request of the Right Hon. W. W. Grenville, and
would, almost certainly, have been adopted for the com-
mission, but for an extrinsic reason, viz., that the infraction
on the part of the United States of the treaty of 1783 had
induced Great Britain to retain certain posts in the United
States pending a satisfactory settlement. It was important,
therefore, that the wording should neither exclude these
posts, and thus cast doubt upon the right to retain them,
nor explicitly claim them, and thus give offence to the United

ONTARIO-MANITOBA BOUNDARY

89S

States. Dotdietter's oommiMion, as adopted, was intended
to detcribe in a •! jrt form tlie sam? boundaries as set forth
in Lord Dorchester's draft.

JuDiCATVKB Acts, i<k>3 and i8i8

In 1803 an imperial act was passed providing that all
offences committed in any portion of British Notth America,
not induded within Upper or Lower Canada, should be tried
as if they had been committed within these provinces. In
1818 the legislature of Upper Canada passed an act authoris-
ing the trial, in any district, of offences committed within
the province but without the limits of any described town-
ship or county.

The proclamation of Governor Simcoe, of 1792, dividing
Upper Canada into electoral districts, defines ICent as includ-
ing all the territory not included in any other county, and
as including ' to the utmost extent of the country commonly
called or known by the name of Canada.' This, as an exercise
of jurisdiction, strengthened the case for Ontario.

In 1840 the provinces of Upper Canada and Lower Canada
were united to ' form and be one Province under the name of
the Province of Canada.'

Section 6 of the Briti^ North America Act, 1867, pro-
vided that the former provinces of Upper Canada and Lower
Canada should be severed and constitute the provinces of
Ontario and Quebec respectively. Section 146 of the same
act authorized the queen to admit other colonies, Rupert's
Land and the North-western Territory, into the union.

Rxjpert's Land Act, 1870

In 1868 the Rupert's Land Act was passed. It defined
Rupert's Land as including the whole of the lands and
territories hdd, or claimed to be held, by the Hudson's Bay
Company. In 1869 the company executed a deed of sur-
render to Her Majesty, which included all its land except
blocks of land adjoining its posts and one-twentieth of the
land in the ' Fertile Belt.' In 1870 an imperial order-in-

VOL. VIII

896 BOUNDARY DISPUTES AND TREATIES

wundl ofderad that the North-weiteni Territory and
Rupert • Uod should become pert of the Dominion of
Caiuda on payment of ;C3oo,ooo to the Hudaon'e Bay
Company.

In 1871 the Dominion and the Province <rf Ontario
•greed to Appoint commiMionen to determine the wcttem
and northern boundaries of the latter. Aa the inctnictiona
to the oommiMioner for the Dominion defined the meridian
of the mouth of the Ohio aa the western boundary, and the
height-of-land between the St Lawrence and Hudson Bay
as the northern boundary, the government of Ontario
declined to take any action, claiming • that the boundary
Una is very diffenait from the one defined.'

ASBITKATION OP BOVMDAKY, 1878

In 1873 the Macdonald administration was defeated at
tiie polls, and, in the following year, the Dominion and the
Province of Ontario agreed to arbitrate their difference raspect-
ing the boundary. In this instance, the fact that govemmenta
of the same political complexion were in power at Toronto
and Ottawa apparently fodlitated an agreement. Ontario
nominated the Hon. W. B. Richards, and the Dominion
the Hon. Lemuel Allan Wihnot. Owing to the resignation
of Richards and the death of Wilmot, they were succeeded
by the Hon. Robert A. Harrison, chief justice of Ontario,
Md Sir Francis Hincks respectively. The Right Hon. Sir
Edward Thornton, British ambassador at Washington, was
selected as the third arbitrator.

On August 3, 1878, the arbitrators rendered their award.
They probnged the due north line from Lake Timiskaming
to Hudson Bay ; thence to the mouth of the Albany River ;
dience, following the Albany, EngUsh and Wmnipeg Riven,
to the longitude of the north-west angle of Lake of the
Woods ; thence due south to the north-west angle.

By an act of the imperial pariiament, passed on June 29,
1871, the • Parliament of Canada may, from time to time,
with the consent of the Legislature of any Province of the
said Dominion, increase, alter, diminish, or otherwise alter the

ONTARIO-MANITOBA BOUNDARY

897

Hnits 61 fuch province/ Before an act oonfinning the arbi-
traton' dedsioo could be pawed by the Domlnkm, tbi
Mackeiuie administraticm was defeated, and the incoming
govwnment refuted to tmtify it

RsraBBNCB TO THB ImFBBIAI. FUVY COUNCIL, I884

In December 1883 it waa agreed to refer the matter to
the imperial Privy Council. In July following the case waa
argued by D' Alton McCarthy for the Province of Manitoba,
Christopher Robinson for the Dominion, and the Hon
Oliver Mowat and A. Sooble for Ontario. On July aa thp
Privy Council reported: (i) that in default of legist tinn
by the Dominion, the award of the arbitraton was not b nd-
ing ; (a) that, nevertheless, the boundary-lines laid duwn h\'
the award were 'substantially correct and in accordance
with the OMiclusioni which their Lordships have dnt' n from
the evidence laid before tiiem ' ; (3) that the boundary — which
they defined in detail — should be in accordance with thu
award of the arbitraton ; (4) that the imperial pariiament
should pass an act making the decision binding and effectuaL

In accordance with the recommendation of the Privy
Council, the imperial parliament passed, in 1889, an act
defining the northeriy and westeriy boundaries of Ontario
as set forth in the decision of the Privy Council.

RbVIBW of THB DiFFBRBNCBS

In reviewing the case it can best be considered under
heads : (i) There was the boundary ' northward ' from the
confluence of the Ohio and Mississippi. The conunission
to Sir Guy Carieton, drafted only a few months after
the Quebec Act, and the terms of the order-in-council
indicate conclusively that the western boundary of the Pro-
vince of Quebec followed the bank of the Mississippi from
the mouth of the Ohio northward to the Hudson's Bay
Company's territories. The contention that 'northward'
necessarily meant ' due north ' was, from a geographical
point of view, absolutely untenable. In addition, the Quebec

I ij

898 BOUNDARY DISPUTES AND TREATIES

Act was expressly enacted to provide dvil government for
a very huge extent of country, within which there were
several colonies and settlements of the subjects of Fratwe!
which country was not included in the government of Quebec
as established by the royal proclamation of 1763. As there
were French settlements in the territory between the Missis-
sippi and the due north line from the mouth of the Ohio, the
adoption of the latter would have nullified the express purpose
of the act so far as this portion of the country occupied by
settlements of the [former] subjects of France ' was con-
cerned. ^ It is not an unreasonable theory that the verbal
diange in Carleton's commissicm was due to the discovery
that in this respect the wording of the Quebec Act lacked
clearness.

The case for the Dominion would have been much stronger
Iiad counsel admitted that the western boundary, as defined
in the Quebec Act, followed the Mississippi to its source in
the height-of-land, and contended that from this point the
boundary followed the height-of-land eastward— basing his
contention on the fact that the water-parting formed the
southern boundary of the territory granted to the Hudson's
Bay Company by its charter. Thus, during the second
day's proceedings before the Privy Council, counsel for
Manitoba was forced to concede that Ontario had exeidsed
jurisdiction in a considerable area west of the due north
line. That the ' height-of-land ' contention placed the eastern
boundary of Manitoba about sixty miles west of Port Arthur,
and that the ' due north * line passed out of Port Arthur
and Fort V^lliam— the most important Canadian ports on
Lake Superior— probably had a determining infiuence in
leading Manitoba to omtend for the wider boundary.

(2) The western boundary of Quebec (1774) was defined
as running northward to the southern boundary of the
Hudson's Bay Company's territories. The Dominion and
Manitoba contended : that the company had a good title
to all the territory covered by its charter, vix. the area
draining into Hudson Bay and Hudson Strait; that this
territory was transferred to the Dominion by the Rupert's Land
Act ; and that, with the exceptfon of the portion included

ONTARIO-MANITOBA BOUNDARY

899

widiin the bounds of Manitoba, the title to diii vast area
was vetted in the Dominion.

Ontario contended that the Hudson's Bay Company had
perfected a title to a limited area only, and that, when in
1700 and 1701 it offered to accept the Albany River as its
soudiem limit in that quarter, it defined the bounds of the
territory in whidi they had perfected their title. In addi-
tion, as already stated, under the terms of the Treaty of
Ryswick, even Fort Albany should have been surrendered
to the French, as it was one of the places taken by the French
during the peace and retaken by die English during the war.
Alt later territorial cessions, whether under the Treaty of
Utrecht or Treaty of Paris, enured to the British crown.
Even in 1763, when Canada with all its dependencies was
ceded to Great Britain, the Hudson's Bay Company had
only one inland post, viz. Henley House, on tiie Albany River,
founded in 1741.

Counsel for Manitoba contended that, even if the limits
of the British territory in tiie Hudson Bay basin were
curtailed, yet, under the rule of posUimin*—' in virtue of
whidi, persons and things taken by the enemy are restored
to dieir former state on coming again into the power of
the nation to vdiich they betonged' (Vattel)— territory of
which the Hudson's Bay Company was temporarily deprived
reverted to it after the peace of 1713 and of 1763. Counsel
for Ontario contended successfully that the aigument was
fallacbus, the validity of die grant to the company being
denied m Mo as respected territories in the possession of
France, which territories, moreover, were excluded by its quali-
fying clause, 'not already actually possessed by . . . sub-
jects of any other Christian Prince or State ' ; and that even
granting the validity of the territorial grant, its subsequent
curtailment by the (^rations and acquisitions of the French,
conserved to them by the treaties of Neutrality, 1687, and
of Ryswick, 1697, put an end to any right of posUimmium,
Ontario claimed that the ' company had, as a result of the
wars and treaties between the two powers, become divested
of the territorial title which the charter purported xo confer,
except in so far as the Crown might thereafter see fit to reoog-

' i

900 BOUNDARY DISPUTES AND TREATIES
ni«e it, in whole or in part, eum gratia, and diat die Crown
having alao become poueawd of the rival title of Fnmoe. it
united in itself every Interest.' >

On the other hand, the Frendi had founded Fort Mi*,
tassini before 1703; AWtibi, on Lake AWtibi, in 1686;
Fort Piscoutagany, on a brandi of the Abitibi River, about
1673 ; Fort St Pierre, 1731, and Maurepas, 1734, on the
Ramy River and Winnipeg River respectively. On the
Saskatchewan River, Fort Bourbon was founded about 1740 ;
Paskoyac, about 1755 ; Fort 4 la Come, 1753 ; a fort was
constructed at the site of the present dty of Winnipeg about
1734 ; and the French had ascended the wateta of tiie
Saskatchewan to a point 'three hundred Iragues' above
Fort Paskoyac (modern. The Pas).

It is obvious from the forqioing that die French had
effectively occupied the upper portions of the country
claimed by the Hudson's Bay Company.

(3) The next point to be considered is : where was the
western botmdary of Ontario ?

From the Quebec Act, 1774, till tiie preliminary treaty
of peace, 1782, it was a line ' northwaid ' fiom the mouth
of die Ohio to die southern boundary of die Hudson's
Bay Company's territories, which were assumed to be inter-
■ected at, or near, the source <rf the Misstssi{q)j. From 178a
tiU the Constitutional Act, 1791, it was assumed to fbUow
the Missiasipirf northward, from its intenectioi by a dk«
west line ftom die north-west angle of Lake of ^ Woods,
diough, as a matter of feet, the source erf the Misstssippj is
150 miles ahnost enctiy due south of the n(^di-west an^.

The Constitutional Act provided for the division of
Quebec into Upper Canada and Lower Canada. The
order-in-ooundl dividing Quebec defined the former u
including aU the territory to the westwaid and soudiward
of the division line ' to the utmost extent of die country
commonly called or known by die name of Canada.' Lord
Dorchester's oonuniasbn, issued only three weeks later,
defined Upper Canada as including all such territories west
of the divincm line ' as were part of our said Province of

« Pr«tt4iintt b$fort tit ImptruU Prny CtrntU, p. J35.

Oin'AUaMANITOBA BOUNDARY 901

Qacbec.' Whn liw sttentkw of Henry Duiida% secretary
of atate, wn 4newn ts the variation in these doonients, he
rq;>ited thmt the difference ' does not, I conceive, amount at all
to a variance between tfaaBi, and is therefore perfectly
inunaterial.' This demonstrates that 'Canada' and the
' Province oi Quebec ' were treated as interchangeable terms.

Mudi evidence was introduced by Ontario to prove that
the territory forming the piesent province of Muiitoba and
southern portions of Saskatdiewan and Alberta was occupied
by the French. That they established posts and explored
the country, possibly to within sight of the Rockies, is un-
deniable, but there is no evidence to warrant the inference
that they had a considerable number of soldiers in the
territory,* or that their forts were anything more than
stockaded trading posts. They had, undoubtedly, ' occufued '
the country prior to the cession of Canada. Following the
cession, British fur traders froaa Montreal entered the
country and intercepted the Indians on their way to Hudson
Bay. At the date of the cession the Hudson's Bay Company
had only one inland poet, viz. Henley House, on the Albany
River, about 150 miles from its mouth. Until 1774, eleven
yean hter-^hen they constructed their first inland fort,
Cumberland House— ^tfaey had not a single poet in the prairie
country.

Counsel fcH- Ontario was undoubtedly justified in con-
tending that the region drained by the Saskatchewan and
Red Rivers— known officially as ' Poste de la Mer de I'Dueat '
— was included within the limits of the ' country commonly
called or known by the name of Canada.' Whether this
view wouM have been accepted by the Privy Council but
for the aUe manner in which ex parte arguments and deduc-
tbns were put forward by counsel for Ontario, is not so
certain. In any event, Oliver Mowat, while arguing for the
larger daim — to strengthen his case for the smaller — acknow-
ledged that, as Ontario had not protested the erection of
Manitoba, he was estopped from claiming any portion of the

> Bongainvilld «m quoted •■ nporting, rMpacting th« port at Lakt Afaitibi,
that it ' may coBtaia MM handrtd Bwi.' Evm vithoat the proof a&wdad by th«
costast, it i* oatteia that thii ttatamant reianad to tha numbar of IndUmt tiad-
iag at the poat not to $ol4m$ or tnfogU.

9M BOUNDARY DI^*UTES AND TREATIES

area tnchided within that province, and declared that he

wouM he latirfed il Ontario were awaided the limits defined
by the arbkraton.

(4) ^^^ere was the soutiiem bouadary of the Hudson's
^y Company's territories? The references to the Treaty
of Ryswick and subsequent negotiations demonstrate that
the Hudson s Bay ConqMmy, in 1700 and 1701, offered to
accept the Albany River as the boundary between its territory
and that of the French and, in addition, under the terms
of the treaty, it should have surrendered Albany and aU the
other posts on the bay except Nelson. This therefore
determmed its territorial rights. The cessions by the Treaty
of Utrecht and the Treaty of Paris enured to the British
crown, and not to the Hudson's Bay Company. The com-
pany s servants were thenceforth, in the territory south and
wwt of Hudson Bay, as British subjects, with the same rights
and pnvtieges as other traders.

While the negotiations subsequent to the Treaty of
Ryswick fixed the limit of the Hudson's Bay Company's
daims at the Albany River, there was no defined boundary
above Lake St Jo8eph--the point at which the Albany k>8es
ite identity. The arbitrators foUowed the English and
Winmp«^ Rivers, doubtless because they occupy the western
prolongation of the Albany VaUey. Inasmuch as the descrip-
tion m Carleton's commission was Intelligible to the north-
west angle of Lake of the Woods-and no farther— and
masmuch as the north-west angle is abnost exactly due
north of the source of the Mississippi, they prolonged the
international boundary from this point, northward, to its
mtenection with the Winnipeg River.

Map EviDBircB before the Privy Council

An account of the proceedings before the Privy Council
would be mcomplete without a reference to the map evidence
produced and the errors contained therein. The evidence
submitted on behalf of the Dominion and Manitoba respect-
ing maps and the information disclosed by them was dis-
tmctly defective.

ONTARIO-MANITOBA BOUNDARY 903

A map was prepared spedally for the hearing, and was
put in by counsel for Ontario. It was cmly on the after-
noon of the last day but one that the accuracy of the informa-
tion it contained was challenged by counsel for Manitoba,
who stated that he and his colleagues had not seen it ' even,
until the first day of the hearing,' but no reason was given
for not dullenging it inunediately on introduction, as ex
parU evidence. The map was in the hands of the Law
Lords and was referred to by them repeatedly, and even by
counsel opposing Ontario. The former were much impressed
by tiie French forts indicated on it, notably one on the
portage between the waters of Albany and English Rivets
marked 'French Post, 1673 (appnn. site),' by Fort La
Maune and by Fort Pisooutagany or St Germ^k As
regards the first mentioned, no evidence of nqpartaMC kw
ever been adduced to indicate ifcat the Fiench cscr tei a
post in, or near, this point.

Fort La Maune was constructed hf Dulhat 'asar ifcp
River La Maune, at tiie bottom of Lake Alemsfi^B.'
' Bottom of Lake Nifugon ' means, unquestiaaabfy, ihe
portion of Lake Nipigon of^ionte the ontlet, and, on Jiilhit's
inaPt 169s, it is shown at tiie mouth of lie preasot f^— ^-fcl^r
River, with a note — ' Poste du Sr Duluth poor 1" ' rr \m
Assiniboels et autres sauvages de descendre \ la Baye de
Hudson.' There is no reason to suppose that it was any-
where but on Lake Nipigon.

Respecting the impression created by La Maune, as
shown on the Ontario map, the Lord Chancellor said : ' It
is extremely important in connection with this present con-
troversy, if it is the fact that there was at that time a fort
(m the eastern angle of Lake St Joseph constructed by the
French.' Later, counsel for Manitoba actually admitted that
this fort had been constructed on the 'Albany River.'

Fort Piscoutagany or St Germain is also shown on
Jaillot's map at the outlet of Lac Piscoutagany, and is
marked ' Poste du Sr de St Germain pour couper presque
toutes les voies des Sauvages du Nord et les empkher
de descendre h. la Baye de Hudson.' Pisooutagany, or
Peischagami (Nighthawk), is unquestionably the modem

>l!

VOL. VIII

904 BOUNDARY DISPUTES AND TREATIES

Ni^thawk Lake, situated tbaat forty miles soullhwesi of Lak$
AbUibi, and on the Frederick Hotue branch of the Abitibi.

On the Ontario map both La Maune and St Gennain are
ahown on the Albany. No evidence has been adduced to
justify idacing the former tiiere, though some maps oi later
date than JaiUot*! Indicate St Germain on the Perrai River,
which on some maps corresponds to the Ombabika, a tribu-
tary of Lake Nipigon ; and on odien to the Missinaibi
branch of Moose Rivei>— not the Att>any^-thou|^ the topo-
grafby is so grossly inaccurate that It is probably based on
Indian report only. The apparent inconsistency was probably
due to an attempt to offset the demands of the English,
subsequent to the Treaty of Utrecht, for a boundary that
included territory claimed by the Frendi on the ground
of prior occupation and discovery.

The French refused to concede the boundaries demanded,
and made a counter-claim that the boundary should pass
half-way between their posts and those established by the
Hudson's Bay Company. From about this date the French
geographers 'decapitated' die rivers flowing into James
Bay from the south, and extended the streams draining into
the St Lawrence. Hence the difficulty experienced in cor-
relating the topografrfiy of the region affected, as shown on
these maps, and as shown on modem maps.^

A copy of Mitchell's map of Nortii America, 1755, which
had been procured from the Hudson's Bay G}mpany by
the Dominion, was submitted to the arbitrators as the map
'before the commissioners when the Treaty of 1783 was
made.' ' As already stated, there is no evidence extant to
identify any map as the one used by the negotiators oi 1783.
On the Mitchell map tiie height-of-land between the waten
of Hudson Bay and of die St Lawrence is designated ' Bounds

I On d'Anvffle't XD$ip, 1746, ' R. d'Abitibi,' ' L. d'AbitiU,' ' Lk Fligotaguni '
and ' St G«ni»in ' post m transferrad bodily to fonn tbe oppar portiaa of the
Albany River, probably to Idnn the foondatiott of a daiia to this portion of the
area drained by it. Ai there is an Abitibi lain and an Abitibi river oorreetfy
■hown, tfaia map containi tiro lakae and two riven bearing the aame ■aaes.

■ So stated by ooonael for Ontario, bat in error ; he probably referred to
the British Records OlBoe map, which has no historical ooonection with the
negotiatioas of 1789 (not' 1783 *)• Seep.8aa.

ONTARIO-MANITOBA BOUNDARY 905

of HadKm Bay by the Treaty of Utrecht.' At Lake of
the Woods is indicated as diaduu^ing into Lake Superior,
the hei8^t<oMand line passes to the north of it. It is obvious
that, if the geographical information contained in the map
had been correct, the line would have been drawn to pass
betweem Lake of the Woods and Lake Superior, and that,
so for as it evidenced anything, it demonstrated that the
boundary followed the height-of-Iand irrespective of its actual
position as determined by actual surveys. The Privy Coun-
cil accepted this evidence, which really militated against the
contention of Ontario, as evidence in favour of it, and counsel
for the Dominion and Manitoba did not point out that
this line, being drawn north of the Lake of the Woods, really
demonstrated that the actual line passed east of it.

In addition, there was actualfy in the British Museum
the famous King George m map— which has been referred
to at length in connection with the Ashburton Treaty. On
it are drawn heavy coloured lines, commencing at Griming-
ton Island on the Labrador coast ; thence south-westward
through Lake Mistassini to the 49th parallel ; and thence
following the parallel to the limits of the map, and desig-
nated, ' Boundary between the lands granted to the Hudson's
Bay Company and the Province of Quebec* This map would
have beoi absolutely conclusive proof that the British
government in 1774 considered that the 49th parallel formed
the north-western boundary of Quebec. If this map had
been produced, it is at least doubtful whether the awaid
would have been confirmed.

Another point overlooked by counsel opposing Ontario
was, that the grant to Lord Selkirk by the Hudson's Bay
Company actually included, north of the international
boundary. Hunters Island and a strip of adjoining territory
extending to the heightH>f-land.

\{\

Revisw of the Case bbfosb the Pkivt Cocmcil

A critical study of the proceedings emphasizes the masteriy
manner in which Sir Oliver Mowat conducted the case for
Ontario. He and his colleagues had been studying the case

906 BOUNDARY DISPUTES AND TREATIES

for yean, and he haa been quoted aa atating that tiwy were
aaturated with it.* Mowat'a akill in preaentinK hia caae ia
demonatrated by tiw fact tint, at the outMt, tiie Law Loida
oooaidered hia poaitira untenaUe.*

Though it haa been neoenary to indicate pointa tiiat
mig^t have been nuKle by oounael oppoatng the daima oi
Ontario, it ia obvioua that, with onfy aeven mondia' prepan-
tion— «a compared with about twelve yean by oounael for
Ontario— they were labouring under great diaadvantagea. It
ia a fotr inference tiut die aatute premier of Ontario, when
propoatng that the caae ahouM be heard at an eariy date, fully
i^tpredated the handicap thua impoaed upon hia oppoaeotM.

In addition, it ia much eaawr far the atudent, with ample
time for inveatigation, to critidae than for oounael to meet die
variouapointiaaniadebyhiac^)p(menta. This, however, doea
not apply to die map evidence. The map filed by Ontario
ahould have been repiKliated aa aoon aa preaented, and, had
the Dominion and Manitoba had the aasistance of an acptrt
geographer— (me who could read the evidence diacloaed by
the mapa in the lig^t of the printed documents and VK» wr«a,
thua auppkmenting and verifying other evidence— die erroia
reqiecting the Frendi forta, etc., would have been exposed.
Fromandindudingthepreliminafy treaty of peace, 1783, down
to modem timea, Canada haa aufFered territmial loaaea due to
die use of inaccurate mapa. Only on one occaaion haa an
adequate attempt been made to present map evidence, namely,
in connection with the Alaska boundary, and dien practically
all die map evidence waa in favcmr of the United Statea.
It has been stated that, after die cessioa of Canada, 1763,

> C R. W. Vnu, Sir (Xiw Mmmt's UognplMr, Myt Vmt ' m eollMSM.

Mr Soobia, now Sb Aadrav SeoUa, aad UmMU • -rTT U tte lodidalCan.

mittM of tlM V&tf Cooadl, toU mo not k^ aftaciraHs that both bo aad tiw
■Mmbm of th« Jodidal CoaunittM wmw prafoMdly ii|ifMiiil. ant, by lb
M6««f a astaoatva aad accmsta ialoniiatiM, aad ■innainr. by tba ahlitT via
iHiieIihahaMaadUMoaafa»ba|iaiiia(te« ' ~ "^ ■"^' "
thraad ol Ua aifWMBt, tba inauBafablo qi
{Sir Ohatr Memt, i. p. 430).

* Altbooi^, eo Hm tiat day of tho bMibig. tta Lonl i „^

Mowat'a contaatiaa raqiactiiif tha Bmltatfaa ol KajMrft iMd a* .mmtmatm-
Ofdtaafy' {ftttmUmti Hf tta /n^trW iy<»y C^wtfl, ate, p. O), ha aad Ma
o""«-— tlatwaoeaptadtt*iMai

ONTARIO.MANITOBA BOUNDARY

907

the Hudion's Bay Compuiy'a employees weie in the inland
territofy south and west of Hudson Bay as British subjects
with the same ri^ts and privileges as other tradeis. From
the time the company entered the Saskatchewan country in
1774. till it absorbed die North-West Company in i8ai, it
was in active competition with die Montreal traders, and all
attempts to enforce its exclusive claims were successfully
resisted. From the union in l8ax till the surrender in 1869
it was all-powerful in, and had a monthly of, the trade of a
vast rqiion, including the whole of the present Canada, except
the southern portions of Ontario and Quebec and the Maritime
Provinces. On the other hand, although for a half-century
it daimed and maintained territorial rights it was not, in
a strictly legal sense, entitled to, there can be no doubt that
it was its i»esence, its aggressiveness, its great influence with
the Britidi government and its intimate knowledge of the
country that saved to the British crown all the territory west
of Lake Superior, and it was entitled to the most liberal
treatment when Canada n^otiated for the extinguishment
of the title to ' the whole of the lands and territories held,
or claimed to be held ' by the ancient and honourable * Com-
pany of Adventurers of England trading into Hudson's Bay.'

Respecting the decision <d the imperial Privy Council,
if the map evidence had been adequately presented, it is
doubtful idietfaer Ontario would have obtained so sweeping
a decision. On the other hand, it would have been exceed-
ingly unfortunate if the province had been confined to the
narrow triangular strip shown on the George m map —
particulariy west of Lake Superior.

The account of the case would be incomplete without
a reference to the story that attributes the decision against
Manitoba's claims to the anxiety of the Law Lords to get
away for the opening of the grouse seascm. In the first
place, no oae has ever offered an adequate explanation why
this anxiety should be detrimental to Manitoba rather than to
Ontario. In the second place, the decision was rendered on
July 23, neariy diree weeks before the grouse seasra opened.

f;(i

Aitt

90« BOUNDARY DISPUTES AND TREATIES

III

LABRADOR^ ANADA BOUNDARY*

Tbb Royal PiocLAiiATi(»i or 1763

THE royal proclmnatkm laMied in 1763 transferrad
the north 'ooMt ' of the Gulf of St Uwraioe, the
*, _. ,^^^ '"^' o* the mdnknd, Antiooeti. and the
Afaffdalen Islands to Newfoundland. It aln erected the
government of Quebec, and included within the new province
a roughly triangular area, bounded on the east by the St
John River. This stream falls into the St Lawrence opposite
tile western extremity of Antioosti, and was almost certainly
chosen because of its geographical position, iirespective of
its importance as a topographic feature— or the reverse.

The territories not otherwise provided for, including, of
ooune, the portion of the present Ungava Peninsula not
within the bounds of the Hudson's Bay Company's teiri-
tmies, were provided for by the following clause :

And we do further declare it to be our Royal will
and pleasure for the present, as aforesaid, to receive
wider our Sovemgnty, protection, and Dominion, for
the UM of the said Indians, all the lands and territories
Mt included within the limits of our said three new
Govenmients, or within the limits of the territory granted
to the Hudson s Bay Company, as also all the lands and
temtonM Kring to the westward of the sources of tiie
nven yHbkb tall into the sea from the west and north-
west as aforesaid.

The proclamatitm, therefore, assigned :

(a) To Newfoundland : the coast-strip hom a point on
the north shore of the St Lawrence opposite the west end <rf
Anticoeti, to the entrance to Hudscm Strait, and also Anti-
coeti and the Magdalen Islands.

(b) To Quebec : a triangular area including, in huge part,
the settled portion of New France.

« The hiitory of the Ontario-lIajiitoU bouncUiyis. diwn to 176a. atao Um
hhtory of th« L«b«dor bowKtaty, and need not be h«rt te^wttt*!.

'^1

f]'

MKMcorr iBoumoN nn oun

(ANSI and no Tf Sr CHART No. 2)

11.25

lis

I2J

102

1.8

■^^PPLIED M/CE Inc

165J Eost Mom StrMt

RochMtw. Nm York t4«09 US*

(716) 482 • 0300 - Phon*

(7t«) 288 - MSI - Foa

LABRADOR-CANADA BOUNDARY 909

of the St Lawrence, not included in Newfoundland or Quebec.
This, therefore, included the northern portion of the present
province of Quebec, and the ' hinterland ' of the Labrador
ooast-strip.

The commission to General Murray, November ai, 1763,
appointing him ' Captain General and Govemor-in.<aiief in
and over Our Province of Quebec,' and the commisuon to
Sir Guy Carleton, April 12, 1768, describe the boundaries of
Quebec in practically the same language as the pixxdamation.

The Quebec Act, 1774

A petition for the extension of the limits of Quebec was
presented to parliament, and in 1774 the Quebec Act (14
Geo. Ill, cap. 83) was passed by the imperial parliament.

The preamble recites that

Whereas His Majesty, by His Royal Ptxxlamation, bear-
mpr date this seventh day of October, in the third year of
His Reign, thought fit to declare the provisions which
had been made in respect to certain countries, territories,
and islan^ m America, ceded to His Majesty by the
defimbve Treaty of Peace, concluded at Paris on the Tenth
IJay of February, one thousand seven hundred and dxty-
three : and whereas, by the arrangements made by tte
s^d Roj^ Pnjclamation, a very large extent of country,
wthm x»*ich there were several colonies and settlements
of the subjects of France, who claimed to remain therein
under the faith of the said Treaty, was left, without any
provision being made for the administration of Civil
Government therein ; and certain parts of the Territory
of Canada, wAere sedentary fisheries had been establish^
amdcwried on by the subjects of France, inhabitants of the
sMdProvmce of Canada, under grants and concessions from
WW Government thereof, were annexed to the Government of
NetBfmndland, and thereby subjected to regulations in-
conststmt with the nature of such fisheries.'^

Clause I provided for the extension of the boundaries of
the province sO as to include 'all the territories, islands, and
TOunteies in North America, belonging to the Crown of Great
Bntam, bounded on the south by a line from the Bay of

* Italics not in ocigiiiaL

910 BOUNDARY DISPUTES AND TREATIES

Chaleun, along the High Lands which divide the riven diat
empty themselves into the River St Lawrence ttom those
which fall into the Sea, to a point in forty-five degrees of
northern latitude . . . and northward to the southern boun-
dary of the territory granted to the Merchants Adventurers
of England, trading to Hudson's Bay.' It thus transferred
to Quebec all the territory lying between the described
southern boundary of the province and the Hudson's Bay
Company's territories.

It also annexed the Labrador ' coast-strip ' to Quebec,
as follows :

And also all such territories, islands, and countries,
iMuch have, since the Tenth of February, one thousand
seven hundred and sixty-three, been made part of the
Government of Newfoundland, be, and they are hereby,
dunng His Majestv's Pleasure, annexed to, and made
part and parcel of the Province of Quebec as created and
e»ta^*ed by the said Royal Proclamation of the Seventh
of October, one thousand seven hundred and sixty-diree.

The declared intent of the Quebec Act was to annex to
Quebec ' all the territories, islands and countries in North
America, betonging to the Crown of Great Britain, bounded
on the south, by a line from the Bay of Chaleura ' to the moulJi
of the Ohio, and on the north by the 'southern boundary
of the territory granted to the Merchants Adventurers of
England trading to Hudson's Bay.' Coupled with this is
the clause annexing to Quebec the coast-strip placed under
the jurisdiction of Newfoundland by the piodamatton of
1763. Obviously, therefore, the Quebec Act included within
the bounds of that province all British territory bounded
on the south by the defined line between Chaleur Bay and
the mouth of the Ohio ; on the west, by the Mississippi ;
and, on the north, by the Hudson's Bay territories.

This is further confirmed by the imperial order-in-coundl
of August 34. 1791, establishing the Provinces of Upper
Canada and Lower Canada, wherein the dividing line, in
part, follows from the head of Lake Timiskaming ' by a line
drawn due north until it strikes the boundary line of Hudson's
Bay.'

'i i

] I

LABRADOR-CANADA BOUNDARY 911

In the chapter respecting the Ontario-Manitoba boundary

t'^. „ T" *^* investigation has practicaUy demonstrated

Jat Hudson 8 Bay* in this order-in-coundl means the

Hudson s Bay Company's territories.

Chief Justice Smith, in his letter of February 6, 1700
endosmg a proposed addition to the deccription of bo undariM
in Lord Dorchester's commission, says : ' I suppose it is
intended, that Upper and Lower Canada shaU divide between
them, what remains of His Majesty's Dominions in this
quarter of North America, and is not part of Newfoundland,
nor of o^er British Provinces.' He also enclosed a pro^
posed addition importing that by Canada is meant * all the
Domuuons of New France, as claimed by the French Crown
before the conquest.'

Having demonstrated that Lower Canada, by tiie order-
in-oounal of 1791, included the whole of the mainland east
of Upper Canada and lying nortii of tiie River and Gulf
of St Lawrence, and east and south of the Hudson's Bay
Cbmpany s territories, the only indeterminate factors are the
lumts of the latter. The decision of die imperial Privy
CouncU m the Ontario-Manitoba Boundary case fixes the
southern boundary on tiie west side of James Bay at tiie
iUbany River, presumably on tiie ground tiiat tiie company's
?kXl^ '!!°- f^^ ?^°? to accept it definitely determined
toeir terntorwl hnuts m tiiat quarter. It is a fair inference
ttat their oflFer m 1701 to accept tiie Eastmain River as
toeir boundary on the east shore had a similar effect. As
their offer expUdtiy states that tiie French should be forbidden
to pass the river, it indicates tiiis stream as tiie boundary
ftom moutii to source. On tiie Labrador coast tiiey offered
to accept Gnmmgton Island as the boundary. If the English
contention be adopted, aU tiie territory to tiie east andsoutii
of a hne from Grimington to the source of the Eastmain was
part of New France ; if the French contention be adopted
New France included tiie territory to tiie soutii-east of a
hne from Cape Chidley to a point half-way between tiie
French poet at Lake Nemiskau and Fort Rupert

That tiie line Commissary Bladen was in 1719 instructed
to daim b practicaUy identical with the Hudso: i Bay

•t-i

•f

ill

VOL. vm

9ia BOUNDARY DISPUTES AND TREATIES

Company's line from Grimington to the Eastmain is a
curious coincidence.

Whether the boundary-line be drawn from Chidley toward
the Nemiskau-Rupert line, or from Grimington to Mis-
taasim is of little important, as the intervening territory
falls to Quebec either as having been part of New Fiance or
as part of the Hudson's Bay Company's territores.

Having shown that the Quebec of the Quebec Act extended
to, at least, the Grimington-Mistassini Une, it only remains to
consider the eflFect of subsequent legislation by the imperial
government.

Imperial Legislation suBssQUEirr to 1774

It is to be noted that the proclamation of 1763 provides
as follows : » - i-

^d to the end that the open and free fishery of our
aibjects may be extended to and carried on upon the

S.Ti? fi* vu°5u*°*l*^® adjacent Islands, We have
thought fit, with the advice of our said Privy CouncU.
to put all that coast, from the River St John's to Hudson's
Strraghts, together with the Islands of Anticosti and
Madelaine, and all other smaller Islands lying upon the
said coast, under the care and Inspection of our Governor
of Newfoundland.

When, by the proclamation of 1763, the north sbon of
tte Gulf of St Lawrence was subjected to the operation of
Enghsh law and custom, the French-Canadian fishermen
complained; and, similarly, the Newfoundland fisheraen
also complainad when the Gulf and Atlantic coasts were, in
1774. placed under the jurisdiction of Quebec.

The act of 1774 transferred to Quebec * all such terri-
tories' which had, since February 10, 1763, 'been made
part of the Government of Newfoundland.' The preamble
redtes that whereas ' certain parts of the territory of Canada,
wuere sedentary fisheries had been estabUshed and carried
on by the subjects of France, inhabitants of the said Pro-
vince of Canada,' etc.

In a memorial relative to the proposed extension of the
hmits of Quebec, ante 1774, it is stated that the eastern

LABRADOR-CANADA BOUNDARY 913

boundary of Quebec had been fixed at the St John River
from an apprehension ' that the French Canadians had no
settlements or ' lawful possessions beyond those Limits,' and
that a^ valuable Cod Fishery might be carried on upon that
Coast. It was later discovered that there were a ' variety
of datras to possessions upon the Coast of Labrador between
the River St John and the Straits of Belle Isle, and that by
far the greatest part of that Coast is impracticable for a Cod
Fishery.

Judicature Act, 1803.— An imperial act (43 Geo. in, cap.
130). 1803, provided for the extension of the jurisdiction of
the courts of justice in Lower Canada and Upper Canada
to the trial and punishment of persons guilty of offences
m the Indian Territories, and other parts of [British North]
America, not within the Umits of the provinces of Lower or
Upper Canada, or either of them, or of the jurisdiction of
any of the Courts established in those Provinces.'

Judicature Act, 1821.— Act 1-2 Ckso. iv, cap. 66, 1821,
extended and confirmed the act of 1803. It specifically
extended the jurisdiction to the Hudson's Bay Company's
temtorieii also.

Labrador Act, iSop.—An imperial act (49 Geo. in, cap.
27), 1809, provided for the re-annexation to Newfoundland
of such parts of the coast of Labrador from the River St
John to Hudson's Streights. and the said Island of Anti-
costi, and all other smaller islands so annexed to the Govern-
ment of Newfoundland by the said Proclamation of the
seventh day of October one thousand seven hundred and
sixty-three (except the said Islands of Madelaine) shaU be
separated from the said Government of Lower Canada, and
be agam re-annexed to the Government of Newfoundland.'

Judicature Act, /fo^.— Act 5 Geo. iv, cap. 67, 1824,
empowered the Governor of Newfoundland to institute a
court of civil jurisdiction at any such parts or places on the
coast of Labrador as have been re-annexed to Newfoundland.

Labrador Ad, 1825.— Act 6 Geo. iv, cap. 59, 1825,
reates that, as it is expedient that certain parts of the coast
of Labrador should be re-annexed to Lower Canada : ' Be
It therefore enacted that so much of the said Coast as lies

11 i'i
I,

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ffl

1 1

' I.I

914 BOUNDARY DISPUTES AND TREATIES

to the Westward of a Une to be drawn due North and South
from the Bay or Harbour of Ance Sablon, inclusive as far as the
52nd degree of North latitude, with the Island of Anticosti and
all other Islands adjacent to such part as last aforesaid of the
Coast of Labrador, shall be and the same are hereby re-annexed
to and made a part of the said Province of Lower Canada.'

An imperial act (3.4 Vict. cap. 35), 1840, reunited the
provmces of Upper Canada and Lower Canada.

The British North America Act, 1867, enacts that ' the
part which formerly constituted the Province of Lower
Canada shall constitute the Province of Quebec.'

The Rupert's Land Act (31-32 Vict. cap. 106), 1868, em-
powered the surrender of the lands, privileges and rights of
tte Hudson's Bay Company, and an imperial order-in-coundl,
June 23, 1870, provided for the admission into the Dominion of
Canada of Rupert's Land and the North-western Territory.

Imperial Order^n-Coundl. 1880.— The imperial oider-in-
council of July 31, 1880, provides that

whereas it is expedient that aU British territories and
possewions in North America, and the islands adjacent
to such temtones and possessions, which are not already
mcluded m the Dominion of Canada, should (with the
excrotion of t'le colony of Newfoundland and its de-
pcndenaes) be annexed to and form part of the said
Donumon.

IMflferences having arisen between the Dominion and
the Provmce of Quebec respecting the northern boundary

?i S^ r/' * ^°»P>o» A<=t (61 Vict. cap. 3) was passed
in 1898, definmg the boundary as the Eastmain River from
tiie mouth to its source ; thence due east to the Ashuanipi
River; thence downstream through said river and the
Hamilton River to the western boundary of Labrador.

Historical
Summing up, it is evident that, for a proper understanding
of the nval claims of the English and French, it is necessary
to review the history of settlement and occupation in the
Ung^va Peninsula. No British settlements had been made
on the Atlantic or Gulf coasts prior to the cession of Canada,

i i;

-.(I

LABRAD0R.<:7^ADA BOUNDARY 915

nor had British fishermen fished on either. On the other
hand, the French had carried on the fisheries for many years
and had established small settlements, particularly on the
north shore of the Gulf. Carrier, in 1534, found the name
Brest attached to a harbour about eleven leagues west of
Ance Sablon, which proves that Breton sailors had preceded
him. Mingan seigniory was granted in 1661, and other
grants of fishing rights, etc., were also made by the French.
On de risk's map, 1703, Fort Pontchartrain is indicated near
the mouth of Eskimo River, and other posts are indicated
on later maps. The ordinance of Raudot, September 7, 1 709,
defines the boundaries of Tadoussac— granted to Demaure
in 1658— 4n part as follows :

Mistassins, and behind the Mistassins as far as the
Hudson s Bay ; and on the lower part of the river the
domam will be bounded ... by Cape Cormorans as far
as the height-of-land, in whidi extent will be comprised
the nver Moisey, the Lake of the Kichestigaux, the
Lake of the Naskapis, and other rivers and lakes ^rfiidi
discharge therein.

In 1733 Hocquart granted to Pierre CarUer the exclusive
trade, hunting and fishing from Isle aux Coudres to a point
two leagues below Seven Islands and * in the posts of Mis-
tasinnoc, Naskapis,' etc., and the places dependent on them.

In 1702 Vaudreuil conceded to Legardeur de Courte-
manche the privilege of trading and fishing on the coast
between Kegashka and Hamilton Rivers. Courtemanche
constructed, at the present Bradore Bay, a post called Fort
Phelypeaux. These privileges were exercised by him and
by his son-in-law Brouague till after 1759.

In 1770 the Moravians established their first mission on
tile Atlantic coast of Labrador. When, in 1777, the first
English settlers arrived at Hamilton Inlet, they found traces
of abandoned French settiements. The Hudson's Bay
Company established Fort Chimo in Northern Ungava in
1827, and the Erlandson Lake post in 1838. Their first
post on Hamilton Inlet was established in 1837, and Fort
Nascopee on Lake Petitsikapau— an expansion of Hamilton
River— in 1840.

:<i

916 BOUNDARY DISPUTES AND TREATIES

Conclusions
From the foregoiog it is evident that :

iTnJL'io^- '^* ^ '^* Q"**^ *"«'"<>«» the whole of
Ungava Pfenin«da except the Hud«>n'. Bay Company^^

gjj^"' ■ '^^^ ''■^"^' '™'» S* J**" ^ver to qJ.^

B«,.W.,^"™ '^^1? »809 Quebec included the whole of the
pemnsula except the Hud^m's Bay Company'. territonVM.

ElrV^^'.""^ ^ ''". *"• Juriidiction'^''tSe ruSsTf
Lower Canada wa. extended to these territories also.

♦« r ol!? J^ *° '8^5 the coast-strip from St ^ohn River

-«^^1^ ^*1"u/^'? ^'^^ coast-strip between St John River
r5"S.^"°",**" bee° under Lower Canada (Quebe^

•««.;•» Proc^tion of 1763 explicitly states that the
wast WM placed under the governor of Newfoundland
to the end that the open and free fishery may be extended

SSiS'It^" T^i "^^ ~"* °/ LabmdoTandTe^;^
ii.77 'J^^^^J '774 transferred to Quebec, specifically.

J5l, ""^l^' ^ ^ P'*'**' under Newfou^SaS^fa
1763. and rtated that it formed part 'of the territory S
^^a where sedentary fineries' had been carried^S^by
the French pnor to the Conquest. The act of 1809 rl
tranrfers the same coast^jtrip to Newfoundland, and the
fi^ '11 "-annexes a portion of it to Lower Canada.
SHi.".*^ ■*"* continuity throughout, demonstrating
that the strip annexed to Quebec in 1825 had the same dep&
-whatever it may be-as the original strip of 1763.
r.Wi A 'IT ^**. *^ '^P «»"«* have been suffi-

♦1. ^H ^ *'*•'' 8°y«™™e°t of Newfoundland did not protest
^ !S^^u^ °' ^'^' *• *'*^«* •" th« Dominion act

^ciiSS'thtrey" "*°"^ '"™ ^^'^^ ^'^ ^^-^^'y

(8) Newfoundbnd has laid claim to the portion of Un-
gava Peninsula that drains into the Atlantic Md Strait of

ALASKA BOUNDARY

917

Belleide through her Labrador coast-«trip, thou^ it is diffi-
cult to Goncdve that such an extensive claim rests upon a
substantial basis.

Animperial act (3-4 WM. iv, cap. 41) enacted that ' it shall
be lawful for His Majesty to refer to the sal-l Judicial Cbm-
mittee for Hearing or G)nsideration any su H other Matten
whatsoever as His Majesty shaU think fit, and -ch Committee
Mall thereupon hear or consider the same, and shall advise
His Majesty thereon in manner aforesaid.'

By virtue of this act the dispute can be referred to the
imperial Privy Council for decision. It should be so referred,
and the differences then adjusted, at an early date.

ALASKA BOUNDARY

UKASi: OF 1 83 1

ON September 4, 1821, Alexander 1, Emperor of aU
the Russias, signed a ukase granting 'the pursuits
of commerce, whaling, and fishery, and of all o'her
industry* on the north-west coast of America between
Bering Strait and latitude 51° n, to Russian subjects exclu-
sively. It also prohibited foreigners, under heavy penalties,
from approaching these coasts within less than one hundred
Italian (geographical) miles.

On November 12, 1821, this decree was officially communi-
cated to the government of Great Britain by Baron de Nicolai.
Sir Charles Bagot, British ambassador at St Petereburg, was
mfbrmed by Count Nesselrode that ' the object of the measure
was to prevent the " commerce interlope " of the: citizens of
the United States,' who not only carried on an illicit trade
in sea-otter skins, but traded prohibited articles, espedaUy
gunpowder, with the natives of Russian America. Sir
Charies reported to the British government that ' this extra-
ordinary pretension has been adopted from, and is supposed
to be justified by, the xn Article of the Treaty of Utrecht.' >

from all Idadt of fishing

> By Article xn French tnbjecti were excluded
within 30 leapiee ' of the coerts of Nova Scotia.

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918 BOUNDARY DISPUTES AND TREATIES

The HudMo's Bay Corapuy and Britidi 6nns engaged
fa whaling aent protetta reapecting the ukaae to the Boaid
of Trade. On January 18, iSaa, the MarqueM of London-
deny wrote Count Lteven. RuMian ambaaaador at London,
out he waa directed to make auch proviaional proteat againat
Ae ukaae aa woukl fully aerve to aave the lighta of Great
Jntain and protect Britiah aubjecta from molestation fa the
txerdae of their lawful callinga fa the North Pfcdfic. Healao
denied the right of Ruaaia to forbid navigation withfa one
hunilrcd miles of the coast.

In September 182a Count Lieven atated to the Duke of
Wellingtin that the ' Emperor did not propose to cany fato
C9(ecution he Ukase fa its extended sense,' but had instructed
toe Ruasicn ships to cruise close inshore ;* also that the
Russian minister fa the United States had been authorized
to treat upon limits fa North America with the United States.
He stated confidentially that, if Great Britain ' had any
claim to territory on the north-west coast of America,' it
might be brought forward, ' m> aa not to be ahut out by any
agreement made between Russia and the United States.'

In October and November iSaa the Duke of Wellfagton
eidianged notes with Count Nesselrode respectfag the daima
of Russia. Wellfagton objected to the claim of sovereignty
on the ground that, while Great Britain might, with good
grounds, dispute with Russia the priority of discovery,
the forts established by the Hudson's Bay and North-West
Companies gave her the 'more easily proved, more con-
clusive, and more oertafa title of occupation and use.'
He further atated that Great Britafa couki not admit the
right of any power to daim jurisdiction seaward for one
hundred miles, or to convey to private merchant ships the
risht to search fa time of peace.

The Russian government, fa reply, claimed that the
Hudson's Bay and North-West Companies had no posts on
the Pacific between the 51st and 6oth parallels ; that, since
the discoveries of Bering and Chirikof fa 1741, Russian
settlements had been growfag ; that fa 1799 the charter of

* SMpactiag Umw airaniiow, WdUoctoo obMCvwl that ' thia «nilMi»tiaa
whm given will b« vary littia ntiitectacy.'

ALASKA BOUNDARY 919

the RuMian Ameriam Corapwy gruited them the trade of
the oout to latitude 55». and that this charter had not been
ptTMd by Great Britain. They offered, however, to enter
into friendly negotiations for a settiement of boundaries
between the two powers.

On January 31, 1823, Cbunt Ueven informed George
i^ing that he was instructed to propose that * the question
Of stnct right be temporarily set aside on the part of botij,
«nd tiut aU tiie differences ' be adjusted by a negotiation at
St Petenburg. In accordance with the Russian proposition,
Sir Charies Bagot. British ambassador at St Petersburg, was
instructed to commence negotiations.

Negotiations between the United States and Russia
It is necessary here to notice tiie negotiations between
the Umted States and Russia. When informed oflidally of tiie
ukase of 1821, die United States government denied in Mo
the claims of Russia to any territoiy south of latitude 55' n
basing tins contention on the charter granted by Emperor
Paulto the Russian American Company. December 27. 1790
On April 14, 1823, the Russian envoy, Baron TuyU
proposed tiiat negotiations be initiated between tiie United
States and Russia. John Quincy Adams, United States
secretary of state, suggested to Stratford Canning • whetiier
It might not be advantageous for tiie British and American
Governments ... to empower their ministen at St Peters-
burg to act in tiie proposed negotiation on a common under-
standmg. He added tiiat tiie United States had no terri-
torial claims of their own as high as the 5 ist degree of latitude.

Joint Negotiation of Great Bkitain and the

United States with Russu
George Canning wrote Sir Charles Bagot, British am-
bassador at St Petersburg, that ' such a concert as tiie United
States are understood to desire will be peculiarly advan-
togeous ... and it would certainly b. more easy for His
Majesty to insist Ughtiy on what may be considered as a
pomt of national dignity, if he acted in tiiis respect in concert
vouvm ,„

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920 BOUNDARY DISPUTES AND TREATIES

with another Maritime Power . . . Great Britain and the
Unived States may be satisfied jointly with smaller conces-
sions than either Power could accept singly, if the demands
of the other were likely to be higher tha" its own.' Respect-
ing the settlement of the boundary between the two powers,
he said that it might be settled upon the principle of joint
occupancy or of territorial demarcation, the latter being
clearly preferable, and that a line of demarcation drawn at
latitude 57° N would be satisfactory to Great Britain and
fair to Russia.

Sir Charles Bagot proposed Cross Sound, in approximate
latitude 58^* n, and Lynn Canal as the boundary on the
coast, and a due north line from the head of Lynn Canal in
about 135* w longitude as the boundary on the mainland.
Chevalier de Poletica proposed latitude 54** N, and ' for the
longitude such a line as in its prolongation in a straight line
toward the pole would leave the Mackenzie River outside
of the Russian frontier.' To Poletica's objection that the
Cross Sound line would deprive Russia of Sitka Island, Bagot
suggested a pecimiary indemnity.

The Monroe Doctkine
^ In October 1823 Bagot ascertained from Henry Middleton,
United States minister at St Petersburg, what ' he had long
had reason to suspect,' that the United States were prepared
to claim that they had at least an equal right with Great
Britain and Russia to the whole coast as high as latitude
6l*N, basing their claim upon the treaty of Florida Blanca,
1819, whereby Spain ceded to the United States all her rights
and claims north of latitude 42* N. On December 2, 1823,
President Monroe, in his message to Congress, declared
that, in connection with the negotiations with Russia, the
occasion had been ' judged proper for asserting as a principle
. . . that the American continents, by the free and independ-
ent conditions which they have assumed and maintain, are
henceforth not to be considered as subjects for future coloniza-
tion by any European powers.' In the same month Richani
Rush, United States minister at London, informed Geoige
Canning that he was instructed to propose that no settlements

ALASKA BOUNDARY 921

be made ' by Russian subjects south of latitude 55 degrees,
by citizens of the United States north of latitude 51 d^rees,
or by British subjects either south of 51 degrees or north of
55 depiees.' As Great Britain and the United States were at
that time in joint occupation of the territory north of lati-
tude 42* and as Great Britain had repeatedly refused to
accept latitude 49* n as her southern boundary, it can hardly
be claimed that the American proposition erred on the side
of modesty.*

Canning asked Rush for an explanation of the president's
declaration respecting colonization. As Rush said he * could
explain it no otherwise than as pointed at Russia,' • Canning
declined to join the British negotiations to the American.*
The negotiations with Russia thenceforth jpixx«eded separ-
ately, and, on April 17, 1824, the United States concluded
a treaty with Russia whereby it was agreed that the citizens
of the United States would not form settlements north of
latitude 54" 40', and that Russian citizens would not form
settlements south of it. As the convention of 1818, providing

» G«ai|e CAnning, in his diqiatch to Bagot, Janoaiy 15, 1814, lefen to the
coincidence that both Rnnia and the United Statei tnggested jj* x •• the line
of demarcation. At the United States propoaed that the line between them-
sdves and Great Britain be drawn at Utitude 51* M—th* point at mhich tht Ruttiam
pnttntiom as ut forth in M« ukau of i8ai ttrminal*d—h» observed that ' it does
not teem very nncharitaUe to suppose that the object of the United States in
making a selection, otherwite whoUy arWtraiy, of these two points of limitation
for British Dominion was to avoid coUisioa with Russia themsdves, and to
gratify Russia at the expense of Great Britain. There is obviously no great
temptation to caU in such an Arbiter, U the partition between RnssU and our-
sdves can be settled, as no doubt it can, without arbitration ' (Apptndi* to th»
Com of Alt MajiOy't Govommtnt btfon On Alatha Botmdofy Tribmal, i. p. 6).

• Coorgt Cmtnint ««' *« FritmU, ii. p. 817.

• On January 33, 1824, Stratford Canning wrote Sir Charles Bagot : ' Tliet*
are so many points of rivalship between the two countries, with so much pre-
judice on one side, and so much fbrwardnesi, not to say impudence, on the other
that 1 almost despair of ever seeing my wishes on that subject realised. I see
that you are about to plunge into your North-western negotiations, and I con-
gratuUto you most heartily on having at least to swim in that element without
•n attendant Yani^e offering a cork-jacket, and watching his opportunity to
put your head under water * {G4org* Canning and ki$ Fritnds, ii. pp. aao-i).

On February 17, 1824, Bagot wrote Canning that the original instructions to
Middleton were : ' Nothing less than to propose to Russia to proceed to divide
the whole coast in question between Her and the United States to our entire
exdiuion ' (Bagot Paptn, iSi^m^; in Canadian Arehives).

111

'■(I

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riii-

922 BOUNDARY DISPUTES AND TREATIES

for joint occupancy of the Or^ion territory by Great Britain
and the United States, had still four years to run, there was
ample time for negotiations between these nations respecting
the territory between latitude 42" and 54" 40'.

Instsuctions to Bagot
On January 15, 1824, George Canning instructed Bagot
to suggest a boundary through Chatham Strait, or, failing
that, the channel 'which separates the whole archipelago
from the mainland.' If neither channel could be obtained,
the line was to be drawn * on the mainland to the north of
the northernmost post of the North-West Company bom
east to west till it strikes the coast, and thence may descend
to whatever latitude may be necessary for taking in the island
on which Sitka stands.' On the mainland Bagot was in-
structed to claim the meridian of Mt St Elias as the boundary,
or, failing that, the 135th meridian. Southward of Lynn
Canal he was to limit the Russian coast-strip to a width of
fifty or one hundred miles, but not on any account to aUow
it to extend to the Rocky Mountams.

Bagot's Proposals

On February 16, 1824, Bagot opened negotiations at St
Petersburg with Nesselrode and Poletica. He first proposed
that the boundary should run through Chatham Strait and
Lynn Canal ; thence north-westward to Mt St Elias or to
the 140th degree of longitude, and thence, along that meridian,
to the Arctic Sea. Nessehode and Poletica offered to accept
a line from the southern extremity of Prince of Wales Island
eastward to Portland Canal ; thence up Portland Canal to
the head ; thence following the mountains which run along
the coast (montagnes gui bordent la c6u) to longitude I39«» w ;
thence along the meridian to the Arctic. Except that it
follows the 139th meridian instead of the 141st, this is
practically the boundary as fixed by the treaty of 1825.

B^iot then proposed a line through the strait north of
Pnnce of Wales and Duke of York (Zarembo and Wrangell)
Islands to the mainland; thence northwani 'parallel to
the sinuosities of the coast and always at a distance of ten

ALASKA BOUNDARY 993

marine leagues from the shore,' to 140° w longitude ; thence
due north following the 140th meridian.

The Russian plenipotentiaries adhered to their firat line,
but offered the free navigation of rivers crossing the coast-
strip and to open the port of Sitka to trade for British
subjects. They reminded Bagot that, ' without a strip of
land on the coast of the continent from Portland Channel, the
Russian Establishments on the adjoining islands would be
left unsupported, that they would be left at the mercy of
th<»e Establishments which foreigners might form on the
mainland, and that all settlement of this nature, from being
grounded upon the principle of mutual conveniences, would
offer only dangers to one of the parties and exclusive gains
to the other.'

On March 19 Bagot proposed a line pass. up Clarence
Strait to the middle of Sumner Strait and thenc^ following his
second line. This would have conceded Prince of Wales and
the smaller islands to the west of it to Russia. This a.dO was
rejected. As Bagot had made practically all the concessions
he was authorized to make, he suspended negotiations.*

In Nesselrode's dispatch to Count de Lieven, April 17,
1824, notifying him of the failure of the negotiations, he
claimed that the Hudson's Bay and North-West Companies
' have hardly, within the last three years, reached the neigh-
bouriiood of these latitudes, whilst they do not yet occupy
any point contiguous to the Ocean, and that it is a known
fact that it is only for the future that they are endeavouring
to secure the benefits of the fur trade and of fishing. In
short, we desire to keep and the English companies want to
acquire.' He also stated that, if Prince of Wales Island
were isolated, as proposed by Bagot, it would be rendered
valueless to Russia. Respecting the coast he said : 'As for
us we restrict our demands to a small strip (lisiire) of coast
on the continent . . . when Russia persists in claiming the
reservation of an unimportant strip on the mainland, it is

• On March 29, tSa^, Bagot, in a private dispatch to Canning, said that the
Bnssiaa government ' must be dealt with as you would deal with a honedealer.
Their whcde conduct in the late negociation has been of the most httckstarins
•ml pMlluliln character ' (Bofol Pmptrt, i8ir*4\ in Canadian Archivw).

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924 BOUNDARY DISPUTES AND TREATIES

only as a means to enhance the value, nay more, not to lote,
the adjacent islands.'

Modified Inst&uctions to Bagot
On July 12, 1824, George Canning instructed Bagot to
accept Nesselrode's offer except that, in ' fixing the course
of the eastern boundary of the strip of land to be occupied
by Russia on the coast, the seaward base of the mountains
is assumed as that limit.'

As an additional security that this line would not be
carried too far inland, he stipulated that it should ' in no
case («.«. not in that of the mountains, which appear by the map
almost to border the coast} turning out to be far removed from
it) be carried further to the east ' • than ten leagues from
the sea, but that it would be desirable, if he were ' enabled
to obtain a still more narrow limitation.' He stipulated,
moreover, that the use of Sitka Harbour, and the right of
navigation of the rivers on the continent, should be in per-
petuity.

Lieven : .jn ented to Canning that when a ' chain of
mountains is .ade to serve for the establishment of any
boundary whatever, it is always the crest of those mountains
that forms the line of demarcation,' and that the word ' base,'
instead of preventing controversy, would probably be fruitful
of it. Canning had only used the word 'base' because

^ Italics not in original.

» ThJattipiiUtionwaainaertedatthainitanceof J. H. Fdly,gov«niaroftlM
Hudaoo't Bay Company, who had writtan Canning on May a6 pnceding, that
the moontaina d«Kribed by the Rmdan* as at a ' Ms pttiU ditUuu* ' might
leally be at a very considetaUe distance from the coast, and that theiefara
the distance ought to be limited, as suggested by Bagot, ' to a iew leagues, say
not exceeding ten, irom the shofes.'

On April so Canning wrote Bagot : ' By the enclosed copy of a letter from
Ur Felty (from pettit, a sUn) yon wiU gather that I have the consent of the For
Companies to close with the Rnssian Proposal ' {Gtorgt Conning mi hU Fritnds.
ii. pp. a3a-3).

That Canning was in dose touch with the British interests afiected adversdy
by the Russian ukase, is indicated by his private letter of July ag, 1824, to Bagot
He hamoconsly wrote that the proposed convention ' had been submitted to
both the furry and the finny tribes— the Enderbys, the Pdlys and the Barrows.
. . . In addition to the claims of science, there is very nice " bobbing for whale,"
they teU me, ipsu Bthringi in/aucibus, which must be guarded ' (Ctorg4 Canning
and hit Fritnds, ii. p. a66).

i^v-

ALASKA BOXWDARY 935

Great Britain was then, and had been for many yean, engaged
in a controveny with the United States respecting the ' high-
janda ' boundary between Quebec and Maine— the boundary
by the treaty of 1783. He therefore inwructed Bagot. if
preased, to accept the ' crest.'

When Bagot submitted his proposal to the Russian pleni-
potentiaries on August 21, they refused to concede, for a
longer term than ten years, the opening of the port of Sitka
or hberty of navigation along the coast of the lisiire, or to
concede any rights to visit the coasts north of latitude 6o' n
To Bagot's protest that they had, on April 5 preceding,
offered to open the port of Sitka and the lisiire, they repUed
that It was never their intention that the freedom should be
perpetual.^

Instructions to Stkatfosd Canning

Negotiations were suspended, and shortly afterwards,
as he desired a post nearer England, Dagot was transferred'
to The Hague. George Canning dedded to send a special
mission to negotiate the treaty, an^ in December 1824,
Stratford Canning was appointed plenipotentiaiy on th?
part of Great Britain. He was instructed : that it was
comparatively indifferent to Great Britain whether the
question of boundaries was hastened or postponed, but that
Russian pretensions to exclusive dominion over the Pacific
must be repealed ; that the only point to which the British
government attached any great importance was ' the doing
away (in a manner as little disagreeable to Russia as possible)
of the effect of the Ukase of 1821 ' ; that the substitution, as
the boundary of the lisiire, of a line ten leagues from and
parallel to the coast, for the crest of the mountains, was
madnussible, particularly as the latter was the boundary

A ' F^^^ Uie change of Itont wm doe to the fact that on April 17, twelve
day. later, they had signed the treaty with the United States giantiag thwe privi-
leges to tkc, latter for ten years only. In addition Bagot had, in Inly loUowia*
-Uwngh withont instmctions-attended a preliminaiy conference with Rns^
ai^ Anstnan plenipotentiaries respecting the attempt of the Greeks to achieve
todependence. Canning repodiated Bagot's action, and eventuaUy aU nesotia,.
tiwis ceased between England and the Holy Alliance. This nndoabtet^gave
peat offence to Russia, whose double^ealing had determined Caaninc to act
indq>endendy. »->a»«i« m ■«

F i

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9a6 BOUNDARY DISPUTES AND TREATIES

■uggetted by the Ruasians ; that Great Britain would accept
the summit instead of the seaward base aa the line of demarca-
tion ; that from the vicinity of Mt St Elias to the Arctic,
the line should follow the 141st meridian, and that the
limitation of the opening of the port o» Sitka to ten yeaia
was acceptable provided no other nation received more
favourable terms.

In concluding George Canning stated that

It is not, on our part, essentially a negotiation about
lumts. It is a demand of the repeal of an oflFensive and
unjustifiable arrogation of exclusive jurisdiction over an
ocean of unmeasured extent ; but a demand qualified
and mitigated in its manner, in order that its justice
may be acknowledged and satisfied without soreness or
humiliation on the part of Russia. We n^otiate about
territory to cover the remonstrance upon principle.

Difficulties arose between the negotiators with reference
to the definition of the lisiire as following the crest of the
mountains except where it was more than ten leagues ftom
the coast. Eventually this point was conceded by the
Russians, but that the concession rankled is evident from
the correspondence. On March 3, 1825, Nessehxxle wrote
Count Lieven that this was the only point that had given
rise to any difficulties, and that the

Emperor would have found it more mutually just, more
dually advantageous, if the natural frontier formed by
Uie mountains bordering oa the coast were adopted
by both parties as the invariable line of demarcation.
England would have gained thereby wherever those
mountains were less than ten marine leagues from the
sea ; Russia, wherever that distance was greater ; and
in view of the want of accuracy of the gecnat^cal notions
«nich we possess as to these countries, suA an arrange-
ment would have offered an entire equality of fevoiu^le
chances to the two contracting parties.

George Canning assured Lieven that the British demand
arose solely from a sincere desire to prevent the recurrence
of any disagreeable discussion in future, and not from any
intention of acquiring an increase of territory ; and that the

'm}

''l1

ALASKA BOUNDARY 927

dMpatet in which they were engaged with the United States,
on account of a similar 'stipuUtion in the Treaty of Ghent,' »
had shown the inexpediency of a delimitation established
on this pnndple.

The two govenunents were in dose touch with their
r^pKtive trading companies, and it is a fair inference that
the Russian American Company feared the limitation would
be detnmental to their interests.*

Treaty of February 28, 1825
On February 28, 1825, the treaty— practicaUy the same
as that proposed by Stratford Canning— was signed at St
Petersbuig.

Artides i and n were identical with the similariy numbered
articles of the treaty between Russia and the United States,
signed the previous year. By them Russia renounced her
extravagant claims to maritime jurisdiction, and it was
mutuaUy agreed that vessels of either party should not land,
without permission, at establishments of the other.

Articles iii and iv defined the line of demarcation as
follows :

, Commendng from the southernmost point of the
island called Prince of Wales Island, whiS point lies
in the parallel of 54 degrees, 40 minutes, north latitude.

/iJilJte.-r^**?-*' '3"^ 1.1** '^3td degree of west longitude
(meridian of Greenwich), the said line shaU ascend to
the nordi along the channel called Portland Channel,
as far as the point of the continent where it strikes the
50th d^ree of north latitude ; from this last-mentioned
Ppmt the hne of demarcation shaU foUow the summit of
the mountains situated paraUd to tiie coast as far as tiie
ptant of mtenection of the 141st degree of west longitude
(of the same mendian) ; and, finally, from the said point
of mtenection, the said meridian Une of the 141st d«ree.
m Its prolongation as far as the frozen Ocean, shaU form
fte hmit between the Russian and British possessions on
the contment of America to the northwest.

« Anenor: 1110111(1 read 'Treaty of Pub, 1783.*

• On Hu^ »9, x8a4, Bagot wrote Canning that NaMelrada and Fototica 'an
butfa under the dominion d the Rnoian Am«ican Com«u,y' (flWfLJw
i8t3-a4', in Canadian Archivw). *^' ^^ ^Vn,

VOL. VIII

* i

i-s|
?

i '■?,

938 BOUNDARY DISPUTES AND TREATIES

IV. With reference to the line of demarcatioa laid
down in the preceding Article it is understood :

1st. That the island caUed Prince of Wales Island shaU
belong wholly to Russia.

2nd. That whenever the summit of the mountains
idiich extend in a direction parallel to the coast, horn the
56th d^:ree of north latitude to the point of intersection
of the i^ist dtgree of west longitude, shall prove to be
at the distance of more than 10 marine leagues from the
Ocean, the limit between the British possessions and the
line of coast idiich is to belong to Russia, as above
inentioned, shall be formed by a line parallel to the
windings of the coast, and vMch shall never exceed the
distance of 10 marine lea^r'.es therefrom.

Article v provided that no establishments should be
formed by either party in the area assigned to the other.
Article vi acknowledged the right, in perpetuity, of British
subjects to navigate all rivers and streams draining into the
Pacific that crossed the lisiire. Other articles conceded
rights of navigation for ten years.

If.'?

The 'Dryad' Cask

In May 1834 the Hudson's Bay Company dispatched an
expedition in the Dryad to establish a trading post on the
Stildne River at a distance exceeding ten marine leagues from
the Pacific. Near the mouth of the Stildne the vessel was
boarded by a RussL: ^i officer, who refused to allow it to enter
the river. The< Jdson's Bay Company appealed to the British
government and claimed £33,000 damages. In December 1835
the British government protested the action of the Russian
officials, and presented the company's claim. Several com-
munications were exchanged, in which Count Nesselrode,
in a very disingenuous way, endeavoured to justify the
Russian action. In October 1838 Milbanke, British minister
at St Petersburg, presented a stiff note practically demand-
ing satisfaction. He observed that, under Article Vi of
the treaty of 1835, the British were guaranteed the free
navigation of the rivers that crossed the lisiire, and that the

ALASKA BOUNDARY

9«9

term of ten yean granted in Article vix to tiie British to
navigate and trade along the lisiire, had not expired when
the Dryad waa turned back. In December Neitelrode, in
a memorandum to Count Kankreen, conceded tiiat they
woukl * be obliged ultimately to give into because the dear
provisions of the treaty are not calculated to itrengtiien the
side we have defended until now. ... As the matter now
stands, we are not likely to have any more plausible pretexts
for further evading the claim for indemnity.' Nessehode
recommended that the Russian American Company should
negotiate a settlement with the Hudson's Bay Company.*
As a result of the negotiations, the latter leased from tiie
Russian company the exclusive right of trading on the main>
land between latitude 54* 40^ and the entrance to Cross
Sound for a yeariy payment of two thousand land-otter
skins. This agreement was renewed fnnn time to time, and
finally expired in 1867.

Nbvtsauzatign dvking thb Ckdiban Was

When the Crimean War broke out, the Russian American
and Hudson's Bay Companies proposed to their respective
governments that the Russian and British territories on the
west coast of North America should be recognized as neutral
territory. This arrangement was loyally carried out by
Great Britain, but was violated by Russia.* Had Great
Britain been informed of this violation, her Pacific fleet would
have seized Russian America, and what is now Alaska would
in all probability have passed to the British crown.

> < Thi« agTeamHit woaM be aspedally dednbla becanae it wonM enable ni
to avoid an fnrtiMr exptanatiaaa with the Govenunent ol the United Statea aa
to its caaealaM damaads, diiadvantaceoaa to oor interaita, for the renewal of
Article iv of the Treaty of 1824, which granted to American ihipa the ri^t of
free navigatioa for ten yean ' (Neadrode to Kankreen, January 4, 1839, in
App$iidiM to tk» Cat of a* UniUd SiaUs, p. 313).

■ ' A few Ea^iih cmiaerB appeared at the entrance of Sitka Bay at various
timei, bat finding no veiseli of war, nor any evidence of a violation of the agre^
ment, inflicted no damage; . . . This was either a fortunate accident or waa doe
to the vigilaaGe of the Rnaaiana ' {fitMcroft's Works, History t)f Alaska, zzziii.
P- 37«)-

r:>\

m r i

I''

930 BOUNDARY DISPUTES AND TREATIES

Sals of Russian Amsuca to m Unitid Statu

In 1867 Rmm« sold her American pomcmjom to the United
Sutes for $7,300,000. Many American writers have pub-
iMhed sensational accounts of the occurrences that led up
to the transaction, but investigation indicates that it is sua*
ceptible of a very commonplace explanation.*

An American company desired to chtaia a licence to trade
for fun in part of Russian America. Sir George Simpson,
the able autocrat of the Hudson's Bay Company, had passed
•way in i860 ; in 1863 the Hudson's Bay Company had
been taken over by the International Financial Association ;
Mnce 1864 the new company had had under consideration
the sale to Canada of its territorial rights and claims, and the
only point at issue was the question of price ; the lease had
only been renewed for three-year periods since 1859. As it
was therefore obvious to Russia that the Hudson's Bay
Company would allow the lease to expire at a very early date,
she decided to sell the whole territory to the United States,
mstead of leasing the coast-strip to an American fur-trading
company, as at first suggested.

'■\

British Rbqubst fob Joint SinivsT, 187a

In 187a Sir Edward Thornton, British minister at Wash-
ington, inquired of Hamilton Fish, secretary of state, whether
the United States would be willing to appoint a commission
to define the boundary between Alaska and British Columbia.
Asa result. President Grujt, in his message to Congress,
December a, 187a, recommended the appointment of the

2 ta!lJ^i!fL^/~**^ "^ *^ *^ ■'^ *«^ to b. op«rf ta ewe
Of intanrmtiaa by « EonpMa poww. dinctod th«B to ruM thtmMlvw on the

Py m w«n-lmown New York «wtflam»n.' who wm rfwit ty n..»,vrti,y f',,„.«.,K.w-
?7J? "J^TL^ *'*.*^*^* **^ ''•'^ ^''•***^ "^ AdiiUnd to feport to Pierid^
Uacoto lor orten ta ewe EnjMd or FtiDce rided with the CoofedetmtM.' etc.
!!!l'^^*?T:?''''*"'=***°**'"«*-' TJ-tCortich.koffwoiiMrtowMiim'
portant official diapetch is uatMlievmble. For tida and timilar taka. ■■■ Bakv.
Tkt AUuka Fnmtit,. »» -bo aimiiar taiaa, tea Balch a

ALASKA BOUNDARY

oommiarion, but CongfCH ftdled to taka action oa aeoount
of the cq>eiue. Fith then suggeited that the boundary
•hould be determinH only where it ciriMod the StiUne River
and a few other important points.

BOVMDAKT ON SmCOfS RlVIK

In 1875 Hamilton Fish communicated to Sir Edwaid
Thornton letters in which it was alleged that the Qinarfiyg
custom-house on the Stildne was in United States territory.
The Canadian Privy G>uncil recommended that the point
where the boundary interMCted the Stildne River should be
determined. In 1 876 representations were made by the United
States government xttptcting a convict named Peter Martin,
who was tried and convicted in a British ColumUan court
for an assault alleged to have been committed near the
mouth of the Stildne. In 1877 the Canadian government
instructed Joseph Hunter to ascertain the position of the
boundary-line on the Stildne. Though Hunter reported that
the assault was committed in die United States territorY,
Martin was 'surrendered on the ground that he was a
prisoner conveyed through United States territory.* Hunter
stated that the line ' following the summit of the mountains
parallel to the coast ' crossed die Stildne 19*13 miles from the
coast in a direction at right angles thereto.

Representations respecting the importance of a settle*
m«it of the boundary were repeatedly made by Great
Britain, but without any action by the United States govern-
ment, except that, in 1878, they accepted Hunter's line, pro-
vided it was understood to be a provisional arrangement
only.

Dall-Dawson Coskbsfomdencb

In 1884 William H. Dall, an officer of the United States
Geological Survey, in a semi-official letter to Dr George
M. Dawson, suggested a settlement of the boundary. He
said that ' the continuous range of mountains parallel to the
coast . . . having no existence,' the United States would

t i

«3t BOUNDARY DISPUTES AND TREATIES

wkh to «aU l»ek oo th« t« JMfUM line pwmiki to tht coMt

•ad th«t It wouW • bt impiMtfciaj, to tfM« any iMch wS
log lint over that "iM of mountaina."' / — «• wmo-

•ad 101886 BdwMd John Phdpi. Unit«l Statat mlS^t
London, in a communication to the Man]ue« of Sallabuiy
•uggwted t^t an International commladon should be apl
pointed to fix a conventional boundary, as it was obvious

that drawing a line ' parallel to the windings of the coast '
wss a geographical impossibility. Hs said: 'The result

of the whole matter Is that these Treaties . . . really give no
boundary at aU, «> far as this portion of the territoiy Is
oonoemed.

xu ^u, 'i!! ^.y*?** Sackville-West. British minister at
Yfuhtagtoa, called the attention of Thomaa Ftands Bayaid.
United States secretary of state, to statements b a report

Siil!!?^* f?*'*^! J^°**«* ^^ "^y- ^ ''"She
bdlcated two points, Ptarier (Chilkoot) Pkss and I4i» w

longitude, which he determined as defining the international
boundary. Sir Lionel observed that Schwatka had made •
fflibta2r reconnaissance In British territory without permiaslon
»om the Bntisb -vvemment, and that although it had agreed,
to prinaple. to take part in a preliminary Investigation of
the botmdary question, it WM not prepared to admit that the
points fiwl by him detwmined where the line should be drawn.
ru« J '. **f !f**^ °^ informal conferences. Dawson and
DmU formuhtad the British and United Sutes contentions
Rspactlvely. Several conventional lines were propoeed. but
the differenoss were irreconcilable.

'i • i

BunSH PSOTBSTS

In June 1888 the Canadian government was Informed
ttat certam perK)ns were about to receive a charter from the
Alaskan authorities to construct a trail from Lynn Canal by
way of White Pass to the interior of Alaska. At the instance
Of the Canadian government, Sir Lionel SackviUe-West was
instructed to Inform the United States government that ' the
territory m question is part of Her Majesty's dominions.'

ALASKA BOUNDARY

935

Sir Uoad omittMl to tpadfy the locdlty rafemd to, aad
Bayard replied that he had no Infonnatkm indintiiig that
audi action waa contemi^ted.

In 1891 Sir Julian Pauncefote addre«ed a note to James
G. Blaine. United Stataa secretary of state. He quoted
a report of the United States Coast Survey, wherein it was
ststed that this buresu proposed to undertake a sur/ey of
the boundary ' through tht Portland Canal ' to 56* M latitude,
and thence north-westerly, following, as near as pimcticable,
Ae 'fMsro; tnnd of Iht coatt, at a distance of a»0Ml 35 milts
from it, etc. He contended that ' the actual boundary line
can only be properly determined by an International Com-
miasion.'

BOUNDAXY SUXVBY CONVENTIONS, 189a AND I895

On July 32, 189a, a convention was signed by Michael H.
Herbert and John W. Foster, on the part of Great Britain
and the United Sutes respectively. It provided for m joint
survey of the territory adjacent to the line from ktitude
54* 40^ to its intenection with the 141st meridian, the sur-
veys to be completed within two years. As the time allotted
was found insufficient, another convention was concluded
Fetmiary 3, 1894, extending the time to Deoeraber 31, 1895.

William F. King and Thomas C. MenCenhaU were ap-
pdnted ainuniasionerB on behalf of Great Britain and the
United States respectively, under the Alaska Convention
of 189a. In 1895 General W.W.Duffiekl succeeded Menden.
hall. On December 31, 1895, DuffieW and King signed their
report and transmitted it, with accompanying maps, to their
respective governments.

Friction at Chilkoot .\nd Whitb Passbs, 1896

The discovery of goM in 1896 in the valley of the Kkm-
dike River resulted in an influx of tens of thousands of minen
and others. The ports of Dyea and, later, Skagway sprang
into existence at the head of Lynn Canal, the gateway to the
Upper Yukon via the Chilkoot and White Passes. Thou^

I 'I,,

■1'

934 BOUNDARY DISPUTES AND TREATIES
Canada's claim to the territorial at the head of Lynn Canal
waa weU known, the United States revenue officen ruled that
the regulations forbade landing from British vessels any-
where on the shores of that inlet. As a result of cwrrespond-
«ce betwera the Canadian and United States governments,

DyeaandSkagway were made sub-ports of entry, thisanange-
ment bemg accepted by Canada. ~««ge-

On January 30. 1897, Sir Julian P&uncefote and Richard
Olnq^ signed, on behalf of Great Britain and the United
States respectively, a convention providing ' for the demar-
cation of so much of the 141st meridian of west longitude as
may be necessary foi the determination of the boundary '
between Yukon and British Columbia and Alaska

As the great traffic attracted to the valley of the Yukon
by the gold discoveries traversed the passes at the head of
Lynn ^al, it became important that the boundary, esped-

JuV -? f "^"".Bovemment proposed to the United State*
tiiat the determination of 'the boundaiy south of Mount
?ihn .If "i?V^.«*.°"" be referred to three Commissioneni
(*ho dhould be jurists of high standing), one to be appointed
l^ each Government, and a third by an independent Power' •
that the commission should proceed at once to fix the frontier
at Ae heads of inlets traversed by this traffic ; and that,
pending the settlement of the boundary, a modus vhendi
be arranged.

On Ma> 9. 1898. the United States government consented
S S* ?T°^ demarcation of the boundary in the region
I M 1^ °' ^V^l ^^*'- '"'^ proposed that monuments
should be erected, but stipulated that this arrangement was
not to be considered as in any manner prejudicing their
rights under existing treaties. The Canadian government
recommended that posts should be erected at the summits

tLI^VS. i^i Ufu^^ ^"""^ *°** ** ^^ confluence of
the Chilkat and Klehini Rivers.

* i"J,^'iJJ"* »*o«houses were constructed near the mouth
of Portland Canal, but their existence was not known to the
British government till 1901. In that year it was discovered
that a United States Coast Survey chart indicated one each

:p;ii

ALASKA BOUNDARY 935

on Wales and Peane Islands, and two on the western ihoie
of Portland Canal. As they had d}viou8ly been erected
solely to form the basu of a claim of ' effective occupation,'
Lord Pauncefote, British ambassador at Washington, was
instructed to make inquiry as to their nature, and the reason
for their erection in the disputed territory. John Hay,
United States secretary of state, claimed that they were on
territory that had been in the possession of the United States
since its acquisition from Russia, and that he was not aware
that the British government had ever advanced any daim
to it prior to May 30, 1898.

Joint High Commission, 1898-99

At a meeting in Washington in May 1898, preliminary
to the appointment of a joint high commission for the adjust-
ment of a number of differences between Great Britain and
the United States, it was deemed expedient to come to an
agreement upon ' provisions for the delimitation and estab-
lishment of the Alaska-Canadian boundary,' and that each
government should commimicate to the other a memorandum
of its views on this and other stated subjects.

In July Sir Julian Pauncefote delivered to the United
States secretary of state a dispatch setting forth the views
of the British government. The dispatch pointed out that,
as the provisional line was ' more than 100 miles from the
ocean, Her Majesty's Government cannot reasonably be
expected to continue to accord it provisional recognition for
an indefinite period, and, pending a definite settiement of
the question, a provisional line more in accordance with the
treaty stipulations should be adopted, which will allow the
occupation by Canada of one at least of the ports on this
inlet.'

It further urged two special reasons for an eariy delimi-
tation of the boundary near Lynn Canal ; first, that as there
had been a large influx of miners and others into the Klondike
-^to which access lay mainly through the coast-strip— the
necessity of a customs frontier on the inlets was ob^ous ;
secondly, that the whole coast-strip was believed to be

vou vin , „

3 K

I i

[I \

,' '*

.1 ■
,1, i

V'ft

,11

936 BOUNDARY DISPUTES AND TREATIES

auriferous; in any event the Joint Commisuon should,
pending a final settlement, establish a temporary line on the
various inlets and rivers crossing the coast-strip.

The memorandum of the United States government
pointed out that the boundary had aheady been the subject
of conventional arrangements, and, as the report of the Joint
Commission was available, the two governments could
proceed to establish the boundary, and that they would expect
the Joint High Commission to determine the boundary in
accordance with the treaties of 1825 and 1867, to delineate
it upon proper maps and to establish boundary monuments.

The Joint High Commission, however, separated without
any settlement of the points at issue.

On October 20, 1899, a modus vivendi between Great
Britain and the United States was agreed upon. The pro-
visional boundary was fixed at the summits of the White
and Chilkoot Passes, and, on the Chilkat River, at the
mouth of Klehini River.

Alaska Boundary Convention, 1903

After much negotiation a convention was concluded at
Washington January 24, 1903, by Michael H. Herbert and
John Hay, on behalf of Great Britain and the United States
reflectively. Article i of the convention provided for a
reference of the Canada-Alaska boundary differences to a
tribunal to ' consist of six impartial jurists of repute,' three
to be appointed by His Britannic Majesty and three by the
Prewdent of the United States ; all questions to be decided
by a majority of all the members.

By Article in it was agreed that the tribunal should
consider, in the settlement of the questions submitted to its
decision, the treaties of 1825 and 1867, particularly Articles
III, IV and v of the first-mentioned treaty: the tribunal
was also to ' take into consideration any action of the several
Governments or of their respective Representatives, pre-
liminary or subsequent to the conclusion of said Treaties,
80 far as the same tends to show the original and effective
understanding of the Parties in respect to the limits of their

ALASKA BOUNDARY

937

several territorial jurisdictions under and by virtue of the
provisions of said Treaties.'

Article iv provided that the tribunal should answer and
decide the following questions :

1. What is intended as the point of conunencement of
the line ?

2. What channel is the Portland Channel ?

3. What course should the line take from the pdnt of
commencement to the entrance to Portland Channel ?

4. To vhat point on the 56th parallel is the line to be
drawn from the head of the Portland Channel, and what
course should it follow between these points ?

5. In extending the line of demarcation northward
from said point .1 the parallel of the 56th degree of north
latitude, following the crest of the mountains situated
parallel to the coast until its intersection widt the 141st
d^ree of longitude west of Greenwich, subject to the
condition that if such line should anyv^ere exceed the
distance of 10 marine leagues from the Ocean, then the
boundary between the British and the Russian territory
should be formed by a line parallel to the sinuosities of
the coast and distant therefrom not more than 10 marine
leagues, was it the intention and meaning of said Con-
vention of i825that there should remain in the exclusive
possession of Rusua a continuous fringe, or strip, of
coast on the mainland, not exceeding 10 marine leagues
in width, separating the British possessions from the
bays, ports, inlets, havens, and waters of the Ocean, and
extending from the said point on the 56th degree of
latitude north to a point where such Une of demarcation
should intersect the 141st degne of longitude west of the
meridian of Greenwich ?

6. If the forgoing question should be answered in the
negative, and in the event of the summit of such moun-
tains proving to be in places more than 10 marine leagues
from the coast, should the width of the lisihre vdiich was
to belong to Russia be measured (i) from the mainland
coast of the Ocean, strictly so-called, along a line per-
pendicular thereto, or (2) was it the intention and mean-
mg of the said Convention that \diere tiie mainland
coast is indented by deep inlets forming part of the
territorial waters of Russia, the width of the lisihre was
to be measured (a) from the line of the general direction

i\ I'ti

938 BOUNDARY DISPUTES AND TREATIES

of the mainland coast, or (b) from the line aepanting
toe waters of the Ocean from the territorial iraten of
Russia, or (c) from the heads of the aforesaid inlets ?

7. What, if any exist, are the mountains referred to
as situated parallel to the coast, idiich mountains, yihtn
widiin 10 marine leagues from die coast, are declared to
form the eastern boundary ?

Articles v and vi provided : that the tribunal should
meet at London ; that, on receipt of the decision, it should
at once appoint experts to lay down the awarded line ; and
that, if a majority failed to agree, the tribunal should so
report to the respective governments.

AlASKA BOUNDAXT TbIBUNAL

Lord Alverstone, Sir Louis Jett6 and the Hon. J. D.
Armour were appointed commissioners on the part of Great
Britain. On the death of Justice Armour, A. B. Ayle*.
worth, K.C., was appointed in his stead. The Hon. Clifford
Sifton was appointed agent for Great Britain.

The Hon. Elihu Root, the Hon. Henry Cabot Lodge and
the Hon. George Turner were appointed oommissionerB on
the part of the United States. The Hon. John W. Foster was
appointed agent for the United States.

The cases were exchanged May i, 1903. Tlie agent for
Great Britain requested an extension of the time aUowed for
filing the counter case, but the United States government
refused it. The counter cases were exchanged July 3
following.

The first meeting of the tribunal took place at the Foreign
Office, London, September 3. The arguments of counsel
were concluded on October 8, and on the aoth the president.
Lord Alverstone, handed to the respective agents the dedsicn
of the tribunal.

The points at issue can be conveniently dealt with under
three heads: (i) The 'point of comMeiKem«n<.'— Tribunal
was unanimously of the opinion that Cape Muzon was the
initial point of the boundary. (3) Whether the boundary
should pass north or south of Wales, Pearse, Sithlan and

Th» Xdiabur^ G-rofrmfiartl bi

A«»»«i ty JaiKM WhUf. FRGS., Mpnttly Ibr -Canmla wtd It, Pnorinee:'

,1 =

111

ALASKA BOUNDARY

939

iToMMf AtMttf latmds.—TiM aiuwer conntted in identifying
the ' Pbrtland Channel ' (ctnal) of the treaty. It involved
the Identity only of this body of water, and not the width or
the navigability.

Great Britain claimed : that it was surveyed and named
by Vancouver, 1793 ; that his nanative made it quite dear
that the pasM^e that he named ' Pbrtland's Canal ' lay to
the north of Wales, Peane, Sitklan. and Kanna^unut
Idands ; that the channel south of these islands formed the
lower portion of Observatory Inlet ; and that he noted the
passage between Wales and Sitklan Islands, but did not name
this channel, since known as Tongaas Passage.

The United States case claimed that Fbrtland Canal passed
between Pfearse Island and Ramsden Pdnt on the mainland,
and south of Pearse, Wales, Sitklan and Kannaghunut, the
difference thus involving the title to the four islands above
named. It contended : that, by common usage, the channel
•outh of these islands was considered to be the southern
portion of Pbrtland Canal, and tliat it was commonly known
as Portland Inlet ; that the channel north of the islands was
known as Peane Canal; and that therefore the islands
were United States territory. It distinguished between
Vancouver's Fbrtland Canal and the n^otiaiors' Portland
Canal, and contended that, relying upon ^ maps known to
have been used by the nq^otiators, the Pbrtland Canal of
the nqjotiators was either the whole inlet from mainland to
mainland, or that branch entering between Peaise Island
and Ramsden Point into the tinpflnffd estuary.

Dbciskw of Tubunal re Poktlamd Canal

Lord Alventone, Root, Lodge and Turner, forming
a majority of the tribunal, decided that Pbrtland Canal
passed south of Sitklan and Kannaghunut Islands, thus
awarding these islands to the United States, and that it
passed north of Wales and PearK Islands, thus awanling
these islands to Great Britain. Sir Louis Jett« and Ayles-
worth dissented from this finding.

Aylesworth, in his dissenting opinion, very ably reviewed

I ■ !

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940 BOUNDARY DISPUTES AND TREATIES

die dedskm, and pnurtically demonstnted that it wai a
oompronuM twaed on a oonccMion by L(»d Ahreratone.
He stated : that it was a txMindary that had never befbie
even been miggeMed by any aie ; that, from Vancouver's
statement, it was incontestable that he had named the
channel north of all four islands ' Pbrdand Canal '; and that
the tribunal was sworn to determine judicially only ail
questbns referred to it He concluded :

Upon sudi findings of fsct as those above described,
and after a ademn adjudication that the Ftntland
Channel of the Treaty Ues to the north of Pterse and
Wales islands, the talang of the two important islands
Sitklan and Kanna^unut, from Canada, and Kiving
them to the United States by a proceeding said to be
iudicial, is, accordmg to my true judgment,' nothing
less dian a grotesque travesty of justice.

While the islands in question are of little value either to
Great Britain or to the United States, there was no evidence
presented by either nation, nor can any be found, that would
>dicate that Portland Channel was ever considered as pass-
ing between Sitklan and Wales Ishmds, as decided by the
I tribunal. F. C. Wade,* one of the British counsel, intimates
plainly that, after Lord Alverstone had come to an agree-
ment with the United States commiasioners respecting the
'mountain' boundary, he was confronted by the Americans
with a demand that he should either rurrender the two small
islands— thus enabling them to win a diplomatic ' victory '—
or see the whole negotiation fail. That securing the success
of the nqptiation was more important than the title to two
insignificant islands is undeniable, but whether the action
of the United States commissbners was the action of three

» Wade itatM that Lord Alvantme drew up a memonmdnin in which be
declared the joint view* of the Britidi commisiioners ' to be that the rh«.,ntl
ran north of the four ialands.' Referring to Lord AIventone'tiiott«-/ae«mpectinc
Sitklan and Kanna(hnnat, ha comment* nreatticany : ' If thie waa a judicial
dednm, if thia waa not a eompromiae, is it not tingnlar that at the moment when
the United Statea commiMionen decided to change their mind* aa to two of tba
ialands, and Lord Alverrtone decided to change hi* judgment a* to the other two,
Hi* Lorddiip was the one to come forward with a subdivided qoeetiao which ioat
met the new ctpditiooa ? ' (CmumImm Ufmtim, zxii. p. 339).

ALASKA BOUNDARY 941

'ifflputU juriits' can Mfdy be kft to the judgment of
poeterity.

(3) Tk* mountain or lisiir$b<mtidary.--Ithmitdiiitmcmt
important branch of the caae and involved the determination
oi the line between the head of Portknd Canal and the
I4itt meridian near Mount St Eliaa.

Bsmsa Cask

The British caae contended : that the queetion whether

Russia acquired a continuous strip of coast depended upon

the meaning of the words 'cdto' and 'Ocian ' in Articles m

and IV of the treaty of 1825 ; that these words referred to

coast and water outside the narrow inlets ; that, In the

Russian reply to Bagot's amended proposal, the coast left to

Great Britain is described aa starting from the ' embouchure '

of Portland Canal, demonstrating that the canal was not

' coast ' ; that the treaty contemplated a shore-line such

aa admitted drawing another line parallel and at a distance

of ten leagues ; that the negotiators had Vancouver's map

before them, and were aware that only a line parallel to the

general trend of the coast wl. practicable ; that the possible,

and not the impossible, was contemplated ; that the ten-

league line drawn by the United States did not, and could

not, follow the sinuosities of the ' cdte,' as they themselves

interpreted that word ; that it was drawn parallel to an

imaginary line joining the heads of the inlets ; that, in 1893,

T. C. Mendenhall, in issuing instructions to the United States

surveyora respecting the surveys under the convention of

1893, directed that they be continued to points not less than

thirty miles from the ' general trend ' of the mainland coast ;

that the only difficulty was due to the United States reading

into the treaty a principle that British territory should

nowhere reach salt water; that the Russian anticipations

of danger to their establishments on the islands if they did

T ot obtain a Usiire of coast, did not warrant the assumption

hat their safety could only be uecured by this exclusion ;

that Nesselrode in 1824 said : ' We restrict our demands to

a small strip [lisiire] of coast on the continent.'

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I'i

ri '{'■■

94< BOUNDARY DISPUTES AND TREATIES

Ropecting the width of the U$i»n, the Britidi

claimed : that it should be meaaured along a line at right
aniiee to the genetal local trend of the coast ; that, if an
inlet extended furdier than die line of mountains paiallel
to the coast, or, in the absence of mountains, further than
ten leagues from sudi coast, the upper portion of it was
British territorial water ; that the continuity of the fringe
was liable to be broken by both the mountain boundary and
the ten-league line.

Req)ecting the identity of the mountains parallel to the
coast, the British case contended . that tiie treaty contem-
plated ranges with a general parslldism only ; tiutorogimidiic
features sudi as mountains could not be opected to run
unifbrmly parallel to the coast, whether straight or winding ;
that the treaty exu^dtiy contemi^ted such variations from
parallelism that they mig^t, in places, be more than ten
leagues from the coast ; that the treaty recognixed tptd&-
cally that the line was crossed by rivers, and therefore was
not unbroken; that the fduase ' erite <fe5 mofi^t^pier ' ripiified
the summits of mountains adjacent to the sea, and was only
introduced as a concession from the line abng tiie seaward
base; that it was immaterial whether there were hi^ier
peaks or a plain behina them ; that the Russians described
them as ' monk^nes gut bordmi la c&te,' and as being at a
'iris petite distance' from the coast; that the Russians
explidtiy stated that they only demanded a ' narrow strip
on the coast,' an ' unimportant strip on the mainland,' only
a ' poimte d'appui,' etc. ; that the crest of the mountains on
the 56th parallel in kmgitude 131" 4a' was the pdnt of
departure ; tiiat the line following the mountains and ridges
indicated on an accompanying map fulfilled the requirements
of the treaty, though it was susceptible of variations in detail
Respecting acts of dther government subsequent to 1835
that would tend to show the understanding of the parties
in respect to their several territorial jurisdictions, the British
case claimed that, as late as 1867, the Hon. Charles Sumner
declared : that ' periiaps no region of equal extent on the
globe, unless we except the interior of Africa or possibly
Greenland, is as littie known ' ; that the lease to the Hudson's

ALASKA BOUNDARY

»o

Bay Compuiy provided for tiie mtura of but one post, and
ttat WM on an island, not on the Miilfv ; that, even if that
leaae was drawn in sweeping terma, the Runian company
could not convey what did not belong to RuMia ; that the
Jeaee was due simply to the desire of the Hudson's Bay
Company to avoid frictira with the Rusrians, and to enjoy
a monopoly of the trade ; that from 1867 to 1877 there were
Umted States troops in Alaska, but none upon the mainland ;
that there had been a general absence of United States control
throughout the Usiir$, though there had been isolated acta
t P?"*^**" **y dtixens of the United States ; that possession
of Dyea and Skagway did not arise or omtinue under dicum-
•tances which should influence the tribunal so to delimit the
boundary as to leave these places within United States
territory ; that the proposition to make Dyea a sub-port of
witry came from the United States government ; that, a»
the necessities of the case required immediate action, Canada,
in accepting it, provided that her acceptance was 'pending
settlement of the boundary question ' ; that the erection of
storehouses on Wales and Ftene Islands had been promptly
protested.

Unrbd States Casb

The United States case contended : that Russia from the
firrt sought to erect a territorial 'barrier' between her
coasta and the inland possessions of Great Britain, and that
she secured this barrier by the treaty of 1825 ; that the
negotiators of the treaty had before them maps showing a
range of mountains distant about ten lu^pxea from the coast
and fbUowing ita curvature; that the monopoly of the
Russian American Compe \y was only of value so long aa
there was not a single trading post on the continental shore ;
that Russia refused Bagot's demand for territory lying upon
the coast to 56' 30', and demanded a territorial barrier
afpinst the nearer approach of British settlemrate ; that
Nessehode's statement in 1824 that Russia required 'at
some distance from the coast, a frontier-line * that should not
be invaded by the British, demonstrated that the purpose

VOL. mil

SI.

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9f4 BOUNDARY DISPUTES AND TREATIES

of tht Miiir* wu to cfwtt m anbfokHi hutkt aknig tht
mOf wfttHwfroat of tlio awtiiMnt ; that tho Um «t u
uavMyliig dirtaao* of tm im^m wh pratebly nfuMd by
Cmt Britda bMMue It night give RuhU tho OMtMii alopM
of the coMt nnga i that Mkldlitoa, b nportliig a cobvwm-
don with Stimtfoid Canning. mM that by thatnatr of 1835
the line of demaicatioo followed Portland Canal up to tha
fifty-dxth degree, ' then tuna tastward* upon that latitude
until it toudiee tiie hig^icet ridge of the dialn of mountaina
lying Gontiguoue to and neariy parallel with the ooait.' etc ;
that the perpetaal privilege wcured to Britidi mbjacta of
navigation was confined to ' riven ' and ' atreama ' croMing
the eattem boundary of the IMir$, became, aooording to tiie
mutual understanding of the contracting parties, no other
waterways crossed the line of denuuication.

Reviewing the peWod 1833 to 1867, the United States
case stated: that, after fruitless negotiations extending over
eleven years, the United States in 1845 submitted to the
measures of exclusion enforced by Russia ; that during tills
period Russia exerciMd sovereignty and occupatioa in the
Usitrt by control over the Indian tribes, by the conduct of
trade, t^ the establishment of posts and forts, by the main-
tenance of its territorial rights against forrign encroachment,
and by the surveys td its waten; tiiat the correspcmdenoe in
the Z>r^ affair proved that the Russian and British authorities
concurred in the view that the boandary of the Usiin was at
a point ten marine leagues from its mouth.

Respecting the p«iod since the cessimi to the United
States in 1867, the United States case emidiasixed the various
acts of sovereignty and occupation. After reciting the
fonnalities of tiie cession and the acts of tiie various oflBdals
who were sent to the territory, it stated : that the map
delimiting tiie boundary published by the government of
the United States in 1867 was not protested ; that their
officials took possession of the territory so described without

> TbM«it«v«7fWMatotMUM«th«tthi*wMadMtkal«tarte'«wtwwd.'
It ia inendibl* thai Stx«tiofd Caaniai woold mate mch • ikUcakwa ctataoMat
viOmUt mm ^UpmuUngMM. It is man piotaUt thM it wm a ilip d tte pw
OB tih* pwt ollliddtetoa.

\\^^

ALASKA BOUNDARY

945

•ay opporitloB t dwt till 1877 tht admlniMmtioct ol AImIoui
•ffaiia WM oooMmI to the War dtpartmait, notpt m to
the oootrot of trad* and tha protectioa ol the revcnua by
dBdalsof the department of tha Traaauiy ; that after 1877
the (ovemment waa divided betweea the Navy and the
Tieaaury departmenta { that tha Indian inhabitanta of the
/Mlr« rendered onqucationed aubmiaiioo to the naval oflkiali:
that dvil govcnunent waiorganiaedaubeequenttothe paaeage
<rf the act of Congreaa of 1884, and diat from 1867 there had
been an ' unqueetioned exerdae of American aovcscignty, by
abnost every form of adminietration.'

In condunon, the United Statee caee amerted that the
evidence eitablialied the following fawti :

(i) That it waa the intentini <d Great Britain and
Ruieia, by the treaty of 1823, to oonfirm in full aovneignty
to Ruaria a continuoua atrip or Usiirg of territory alcmg thie
continental ahorea of the north^weet coast of Amoijca, eirtiend*
ing from Portland Canal to the I4itt meridian.

(a) That it waa thdr intention that the width of auch
lisiire waa to be ten marine leagues, measured from the heads
of all inlets— that is, from tide>water— unless within that
distance there was, wholly or in part, a continuoua range of
mountaina lying parallel to the abuosities of the coast and
extending from Portland C^anal to the i4Xst meridian, in
whicfa latter case the summit of such range was to fbrm
the boundary ; that, aa there is not in this area audi a am-
tinuoua range of mountaina paralld witii the sinuositiea
of the coast, therefore the width of the /isiirs above described
is not limited by a boundary-line along the summit of sudi
range, but soldy by the agreed distance of ten marine leaguea
from tide-water.

(3) That tV> acts of Great Britain and Russia subsequent
to tiie signature of the treaty, and the universal interpreta-
tion given to ita delimiting articles by governments, geo-
graf^en, cartographers and historians of those and otlwr
dvilized nations, agreed with and confirmed the intention
and meaning aa above stated.

(4) That the United States purdiased the territory from
Russia, rdying upon such interpretation of the treaty ; that

i *■'- ill

946 BOUNDARY DISPUTES AND TREATIES

the purchase was open and notorious to the world, and that
neither during the twelve months before the purchase price
was paid, nor within thirty years thereafter, did Great Britain
give notice to the United States that she claimed any portion
of the territory.

(5) That the United States entered into possession of
and occupied the lisih^e as above described, exercised sove-
reign rights therein, and treated the same at all times as a
part of its national domain ; and to such occupation and
exercise of governmental authority Great Britain entered
no protest cr objection.

(6) That from the head of Portland Canal the boundary-
line rui in a northerly direction to the 56th parallel ; ' thence
north-westerly, always ten marine leagues from tide water,
around the head of Lynn Canal ; thence westerly, still
following the sinuosities of the coast at a distance therefrom
of ten marine leagues, until the line intersected the 141st
meridian.'

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Bkitish CotmTER Case

The British counter case opened with a protest against
the refusal of the United States to agree to an extension of
time, and a statement that His Majesty's government
reserved the right to put in some supplementary evidence
which qualified the evidence presented in the Unites States
case. It observed: that the United States case rather
avoided the question of the construction of the words of
the treaty of 1825 ; that it was mainly devoted to a search
for some general end controlling principle which the nego-
tiators might be assumed to have had in view, or to show
from extrinsic evidence what was the arrangement in fact
arrived at. It argued: that the sole function of the tribunal
was to interpret the treaty by ascertaining its intention' and
meaning and not tc recast it ; that the character of the
iisiire depended entirely upon the meaning of the words
'cdte* and 'Ocian'; that, while the British government
endeavoured to ascertain tlie sense in which these words
were used, the United States case attempted to establish

ALASKA BOUNDARY

947

an asnuned controlling prindple, and in support of it
quoted isolated expressions and inelc/ant statements of
no authonty; that, if sudi evidence a:. Middkton's report,
based upon his remembrance of verbal ifatemems by St-atford
Canning, were admitted, all certaintj wcild disappt, /.

TTie British counter case contend. J ; that the c Jy basis
for the barrier ' theoiy was an exprt-icn rtrrorted to have
been used by Count de Lambert to Poletica ; that such an
expression could have no importance as a clue to a convention
arrived at after long negotiations, not even commenced at
the date when it was employed ; that, assuming the Russian
purpose was a * barrier,' it would be provided by a strip of
territory even if some of the inlets penetrated the strip and
terminated in British territory; that, while British ships
would have the right of ' innocent ' passage through Russian
territorial waters, they would have no right to trade or fish
in them ; that by international law the line of coast to be
measured from is taken across the entrances of narrow inlets
which are treated as not breaking that line ; that it was
intended to interpose only a strip of ' territory ' free from
Bntosh trade or settlement, and, if the waters between the
headlantte of inlets were territory, the strip would not be
broken if earned across such inlets ; that the United States
did not understand that Russia had, by the treaty of 1824
secured anything more than freedom from the encroachment
of Amencan settlements, and from the access of Americans
to Russian settlements ; that the Russian contre-projet in
which the lisiire was first suggested offered the free naviga-
tion of the rivers crossing it, and that, for aU the negotiators
taiew, any one of the inlets on Vancouver's charts might be
tiie estuary of a navigable river ; that the reply to the United
States contention that Bagot's offer of a line further south
than his Lynn Canal line had been a concession of both
shores of the inlet, was that the idea of a lisUre had not yet
taken shape ; that it was not access to the sea, but settle-
ment and trade near her own settlements on the islands, that
Russia desired to prevent Great Britain from obtainmg :
that as by Article vii of the treaty of 1825 Great Britain
and Russia granted for ten years reciprocal privileges of

pi;

948 BOUNDARY DISPUTES AND TREATIES

fishing and trading, this provision applied to the lisiire
assumes that part of the inland waters might belong to
Great Britain— otherwise it would be meaningless; that
the United States contention that tiie Russian nego-
tiator—following Vancouver's chart— believed the mountain
boundary and the ten-league line to be substantially the
same was erroneous ; that di£Ferent charts show the moun-
tains in different positions ; that in any event the tribunal
could not alter the treaty to make it agree with the Russian
anticipation.

The British counter case claimed : that there were
mountains parallel to the general trend of the coast that
fulfilled the intent of the treaty ; that the exeidse of juris-
diction by Russia was practically confined to the islands
and to the mainland north of the lisiire ; that the evidence
indicated that the United States occupation of the lisiire
was not of such a nature as to materially strengthen their
title ; that the acts of jurisdiction in Lynn Canal were un-
known to Great Britain, and her ignorance and absence of
action could not be relied upon as showing acquiescence in
the actions of the United States.

United States Coinn^s Case

The United States counter ca8>; contended : that the peaks
of the mountains adopted in the British case as forming the
land boundary of the lisiire axe not ' la cdte des numU^nes
situies paraUHement h la cdte' referred to in Article in of the
treaty of 1835 ; that the British case rested upon the assump-
tion that ' c6te ' meant ' summits ' instead of the ' crest ' of
the mountains, upon the assumption that distinct peaks
can be said to parallel a coast-line, upon ignoring the value
of the word 'sinuosities' in the negotiations and treaty,
upon a failure to construe the intent of the negotiatore as
evidenced in the correspondence, and upon the assumption
of a datum line based upon an erroneous meaning given to
the words ' cdte ' and ' Ocian ' ; that these words used in
describing the lisiire were so used in their physical and not
in their political sense ; that the Hudson's Bay Company

ALASKA LOUNDARY 949

was from the first the party in interest in the fixation of
tte boundary, and the best-informed as to the region ; that
the admissions by that company in the lease and in its inter-
pretation were made by the only representative of the British
£ovemment on that coast ; that Great Britain, having faUed
to reject its mterpretation. must be deemed to ha^ con-
ceded Its correctness.

It s^ted that the Iaw<ifl5ceni of the crown had held : that
by Ae Treaty of Washington. 1871. Great Britain had Iwt
the free navigatton of rivers flowing through Alaska, thus
ccncedmg that they flowed through United States territory :
that the correspondence between the two govemmente.
between 187a and 1878, established that it was conceded tS

hneshouldcross the StiIdne,Chilkoot,Chilkatand other rivers,
and that the only reason the line was not settled then was the
ocoessive cost ; that in 1885 the executive council of British
Columbia stated that Hunter's survey conclusively estab-
hshed the mountains at the crossing of the Stikine to be
about twenty miles from the sea ' ; that the Dall-Dawson
conferences were entirely informal and unofficial; that
at the Reaproaty Conference of 1892 no assertion was
hmtfcd at of a British claim to the heads of inlets or anv
rights on Lynn Canal; that Ueutenant Schwatka had no
instructions to survey the boundary, nor did he attempt to

K !L' ^\,^f "°*^ ^ '^^^ respecting the granting of a
Jarter by Alaskan authorities was so vague and indefinite
that no reply was made to it ; that out of the note of 1808

rJ^Li^'^'" TT^* °' '^8-9 respecting White Md
Chilkoot Passes and the Klehini River, but that it contained
no protest against the occupancy of Dyea ; that the so-
caUed protests feU far short of the requirements of inter-
national law ; tiiat up to August 1, 1898, the United States
government had no distinct and official announcement that
the Bntish government entertained views materially at
variance with those maintained by it.

It was contended on the part of the United States : that
the United States case contained an overwhehning array
of evidence estabUshing its complete, continuous and un-
contested occupation and control over the territory ; that

,. .

¥ ;

950 BOUNDARY DISPUTES AND TREATIES

the evidence adduced established beyond controversy that
the United States had been in occupation and control of the
Lj'nn Canal territory since 1867 ; that, though known to
the Canadian government, no protest was made by it previous
to 1898 ; that the Britidi case was the first distinct, com-
plete and formal announcement of the British claim respect-
ing the boundary of the lisiire.

Respecting the boundary of the lisiire, as defined on the
maps accompanying the British case, it was further con-
tended : that, as the claim placed practically all the lis^e
rivers in British territory, it rendered meaningless Article vn
of the treaty ; that SL-di an interpretation was at variance
with the former attitu<'.e of the British and Canadian govern-
ments ; that it ignored the acts of their own officials respecting
the Stikine ; thi>t the line was impracticable inasmuch as it
extended British dominion over territory admittedly belong-
ing to the United States ; that it deprived the United States
of all tl.^ inlets and almost all the harbours along the lisUre ;
that many mines operated by citizens of the United States
were claimed as in British territory, and that the United
States was allotted a lisitre broken up into disconnected and
worthless fragments, the burden of whose possession and
control no government would be willing to assume.

DEaSION OF THE TjUBUNAL

Lord Alverstone, Root, Lodge and Turner, forming a
majority of the tribunal, agreed upon a mountain bound-
ary that was practically in accordance with the United
States contention. Sir Louis Jett£ and Aylesworth strongly
dissented, and refused to sign this or the Portland Canal
branch of the award. The majority agreed upon a line
joining certain peaks marked ' S ' on an accompanying map.
This formed a sinuous boundary distant about thirty miles
from the general trend of the diore. It followed Hunter's
line at the crossing of the Stikine, and the modus vivendi
boundary at the summits of the White and Chilkoot Passes.
On the Chilkat River, however, the provisional modus vivendi
line was discarded, and the boundary was moved upstream

ALASKA BOUNDARY 951

about twenty miles. From a point near the Stildne River
to another n^r the Taku River, a distance of 125 miles,
It was left undefined, pending further surveys in this region,
l^ter, this area was surveyed and a series of peaks forming
P"*^"y^ "ti^ght line between the two terminal pointe

Review

to*;'" ^""Jf ^"ring to arrive at a fair, unbiased interpre-
totion of the differences that were terminated by the Alwka
Boundary Tribunal, it is necessary to examme the provisions
of the treaty of 1825, the negotiations that preceded it, and
all collateral evidence, particularly the knowledge of the
contractmg parties respecting the disputed territory.

The differences that resulted in the treaty of 1825 were
twofold: first, the protest of Great Britain against the
«rtravagant assumption by Russia of territorial claims
ertendmg one hundred mUes seaward, and, secondly, her
daim to the Paafic coast from latitude 51' n northward.
The latter was considered by Great Britain as of much less
miportance, but was made prominent to allow the Russian
emperor to withdraw from an untenable position. This
was succmctly stated by George Canning. He wrote that
the ongm and pnnciple of the whole negotiation 'is not. on
our part, essentially a negotiation about limits. It is a de-
mand of the repeal of an offensive and unjustifiable arroga-
tion of exclusive jurisdiction over an ocean of unmeasured
ectent. . . . We negotiate about territory to cover the remon-
strance upon principle.' It is evident, tiierefore, that, in
cndeavourmg to obtain a maximum extension of tiieir bound-
aries, the governments of Great Britain and Russia were
amply endeavouring to forward and protect the interests of
their respective fur-trading companies, and were not ani-
mated by a desire to secure additional territory per se. That
Cannmg, having conceded the principle of die lisiire en-
deavoured to contract its widtii to a minimum, was probably
due to the mfluence of the Hudson's Bay Company.

As the awarded line through Portland Canal has been

VOL VtTt -»«.•»

VOL. VIII

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• I

95a BOUNDARY DISPUTES AND TREATIES

^T'iJiS^."'"*^ *° "^^' ^ '^^' -

A study of the correspondence leads irresistibly to the

concIu«on: that Great Britain intended ^concede m

unbroken coc^t-stHp or lisiire^ from Pbrtland (SSTnor^

^P that did not contain a point d'appui for the Hudwn^

^/th r^^' ^**«''^'°'«>a«^PwasofSSS;
jwdth, but was not more than ten leagued wide • A^^
teundary followed the summits of tht&S ^« oflj^!
tarns, and was paraUel :o the winding, of the S!

As proof that Russia was insisting on an unbroken luiint
an mddent in the negotiations and a dau^or^etSt^^J
be ated. Great Bntain's suggestion that the seawarf S2
of the mountams be adopted was rejected by RuiSa^
Ae ground that, if the mountain dopedXn hito T'sT

oimuustt the strength of this argument. If the lisiire was
not unbroken, why did the treaty specifically co^e tiE
navigation of the riveni crossing it ? '^ ^^ "*""**« ^
Having determined the continuity of the lisiire, it now
remams to «amine the respective contentions of Gi^

^J^-^lf'' ^1,"^ ^"^"^ *° ^'^ to what «SJ
theydifiFered from the correct interpretation.

'L.^ ^^ '^^^^ *•"* ^^ °' demartation as fbUowine
^jr^desmontagnessituiisparaUUementhlaciu: Bo2
nations contended that there was no range of m^unSw
P^,<^^^tke coast. The question of paraUeSnL^^IS;
pomts : (I) \yhat constitutes a ' range of mountSS JS
tothecoast'? (2) Whati8r'eantbythe'cr&*' ?

Both parties assumed that this provision suedfied a tnm.
ttnuous mount^n ridge absolutely pamUel toTe ^^^
upward of five hundred miles-a thingSat ever? L^nher
knows tOHlay. and that every geographer Ww SISf fa

•voia giving loine Ittiin, howevw nairow, npm the maiabad • /n-,-i bu*I-^

ALASKA BOUNDARY

953

not to be found anywhere on earth. The antwer, therefore,
must be sought in the mtept of the treaty. The Russian
negotiators were endeavouring to establish a barrier. While
the diarts showed a conventional range of mountains approxi-
mately parallel to the general trend of the coast, both parties
recognized that it was only a conventional indication added
by the draughtsman, possibly from verbal information.
Hence the modifying clause respecting the ten-league maxi-
mum, which was pressed by the British and conceded by the
Russians. It is evident, therefore, that the first tier of peaks
—irrespective of the altitude of the peaks behiid them and
broken by streams only — filled all die requirements ; that
the word ' parallel ' was not used in the ordinarily accepted
sense, and that the line was only locally approximately
parallel to the nearest portion of the shore. The United
States contention that the treaty required a continuous
mountain ridge parallel to the sinuosities of the shore, is not
deserving of consideration. It assumed an intent on the
part of the negotiators that is absolutely contradicted by the
clause in the treaty conceding the navigation of the rivers
that cross the lisiire. This alone is sufficient to demonstrate
that what was contemplated was simply a mountain boundary
that would exclude British traders from the vicinity of tide-
water.

The character of a mountain range is largely a geological
question. When, as in the case of the Coast Range between
Portland Canal and Lynn Canal, it is composed largely of
granite and other intrusive rocks, regularity and continui^'
are invariiably absent. The theoretical conditions assumed
by the United States as indispensable could not be found,
and, in any event, were not necessary. Its attitude was
similar to that of Great Britain respecting the ' highlands '
in the treaty of 1783. It assumed that the on^raphic
features in question must have certain characteristics not
properly attributable to them, and then deduced from the
absence of these characteristics an incorrect conclusion.

The daim of the United States that ' crite ' necessarily
meant the watershed summits was pure assumption, and was
not justified by the facts. The true line lay between the

•'if'

954 BOUNDARY DISPUTES AND TREATIES

boundary contended for by Great Britain and the awarded
line.

The bwic principles having been thus determined, the
mountain boundary, as defined in the treaty of 1825, could
have been laid down on the detaUed maps prepared by the
Jomt Commission. Fn^m the head of Portland Canal the
hne would naturally run aorthward to latitude 56" N, thence
l^' a right line nearly due west to the peak nearest the
shore of Behm Canal, and nearest latitude 56", but north
of It. From that point the aibitratora should have taken the
peaks nearest the coast and joined them by a line so drawn
M to give a continuous lisiire except at river crossings.
At nver crossings the spirit and letter of the treaty would
probably have required that the line should be carried
upstream to a point where the mountain slopes appioached
the stream, or, failing that, to a point where the vaUey had
a mimmum width. This would have given a strip only a few
miles wide, except up the river vaUeys where its depth would
depend upon local conditions. While such a line would
necessarily have been an arbitrary one, it would not have
presented great difficulties to ' impartial jurists of repute *
etcept in so far as the claims of either nation had been affected
by occupation, acts of jurisdiction, etc.

This would have defined the line so far as the treaty was
concerned, but the acceptance by Great Britain of Hunter's
hne at the crossing of the Stikine River, and of the modus
vtvendi lines at the summits of the White and Chilkoot Passes,
and at the Klehini River, very materially strengthened the
claim of the United States to the territory between these lines
and the sea.

Except at the Stikine and the White and Chilkoot Passes,
this Une would have given the United States much less than
It actually received, and would have given Great Britain
considerably less than she contended for. Except at the
points mentioned, and in some river valleys, the lisiire wouW
have been only two or three miles wide. The obvious solu-
tion of the situation created by such a line would have been
a compromise whereby Canada would have been conceded—
m return for a cession of territory elsewhere— a port on Lymi

ALASKA BOUNDARY

955

Canal, with either a neutralized strip or the full ownerdiip
of a 00. necting atrip.

This boundary was not claimed by Great Britain, as it
would have conceded an unbroken lisUre to the United States.
This would have excluded Canada from tide-water and would
have been an acknowledgment that C'-.aada did not extend
to it at Lynn Canal and elsewhere. As the United States
was claiming that the boundary U Waved a line distant ten
leagues from the heads of inlets it v'd aot prefer it, though
the line it contended for was not based upon a correct con-
struction of either the letter or the spirit of the treaty.

Much stress has been laid upon the map evidence, which
was almost uniformly opposed to the British contention.
It is sufficient to say that, till detailed surveys were com-
pleted by the Boundary Commission in 1895, no geographer
could draw the line of demarcation defined in the treaty, and,
in the absence of any definite information, it was generally
assumed by cartographers that the boundary was approxi-
mately ten leagues cUstant from the shore. It can hardly
be seriously argued that indications of a boundary, based
upon mere assumption and regarding which there was no
definite information, could add material strength to the
United States contention.

A review of the case would not be complete without some
notice of the personnel of the Boundary Tribunal of 1903.
The convention of 1903 provided that each nation should
appoint as its representatives ' three impartial jurists of
repute.' The British government assented to this proposi-
tion only after the United States had repeatedly refuseid to
agree to an arbitration by three representatives of each
nation, and a seventh member appointed by a neutral
government.

Great Britain appointed : (i) Lord Alverstone, chief
justice of 'England ; (3) Sir Louis Jett^ lleut«want-govemor
of Quebec, ex-judge of the Superior Court of Quebec, and
now chief justice of that court ; (3) the Hon. J. D. Armour,
judge of the Supreme Court of Canada. On Judge Armour's
death, A. B. (now Sir Allen) Aylesworth, K.C., was appointed
in his stead. Aylesworth was an eminent lawyer and

F
h

«',

956 BOUNDARY DISPUTES AND TREATI*^

pcoqxctive jutdce of the Suimme Court, thou^ lie hter
declined the honour. Subiequently he was minister ol
Juatioe.

The United States appointed : (i) the Hon. Elihu Root,
United States secretary of War, a member of the government
that had, in diplomatic correspondence, contested Canada's
case ; (a) the Hon. Henry Cabot Lodge, a member of dw
United States Senate, who is reported to have declared that
Canada's contentions respecting the Alaska boundary were
• baseless claims ' ; (3) the Hon. Geoige Turner, Spokane,
Umted States senator for the State of Washington: con>
ceming him it has been said that ' decision in favour of Canada
woukl have been easier for any other man in the United States
(except members of the government) thui for a politician
of the state of Washington and a resident of ^kane.' *

The C^inadian government was naturally much dissatis-
fied with the United States appointments, and the imperial
government had the alternative of either breaking off the
nc^ttations altogether— which J-.ny deprecated as a grave
misfortune to Canadian interests-~o. of appointing represent
tatives ' appropriate to the altered circumstances of the case.'
Neither course was adopted.

It was stated later that President Roosevelt had offered
the appointments to members of the United States Supreme
Court. This is doubtful. If offered, it is more than a fair
assumptiou that it was done in sudi terms as to indicate
deariy that a refusal was desired and was expected. The
appointments made by the President of the United States
were a breach of faith.

Returning to the consideration of the mountain boundary :
As already stated, the obvious solution would have been a
treaty whereby Canada would have obtained a port on Lynn
Canal. A concession of this nature would have demonstrated
that the United States did not desire to pursue a purely selfish
policy, regardless of the rights and welfare of her northern
neighbour ; it would have enured to the benefit of United
States trade ; it would have avoided the bitter feeling that
was created in Canada by her intransigent attitude, which

» EwKf« Tk* Kimfiom ofCmuda . . . AUuht Bomtdary, .tc.. p. 306.

ALASKA BOUNDARY

957

will not be allayed unJl ihe demoiutntea by her actiona
that a ttatennanlike policy pievaila at Waahington, inatead
of one dictated by purely pcditical ooniidefatioiu.

The action of Lord Alverstone with reference to the Port-
land Canal idands haa akeady been diicuaeed. Hia vote
with the Americana respecting the mountain boundary haa
been very eeverely criticized in Canada and, to a kMer
degree, in England. Theee critidami are undoubtedly
justified if the Alaska boundary question only is omsidered ;
but, as an integral portion of the British Empire, Canada
must expect that these questions will be dealt with imperially,
and that tiie interests of the Empire as a whole cannot be
sacrificed for a atrip of territory which, while not unimpor>
tant, was not of vital importance. It was predicted in 1903
that the United States would establish fortificationa on
Sitklan and Kannai^unut that would dominate Port Simp-
son, then the prospective terminus of the Grand Trunk
Pacific Railway. Ten years have rolled by ; the fortifica-
tions have not been erected, and even the stordiouses, erected
to form a United States claim to Wales and Peaise Islands,
are in ruins. Dyea is non-existent and Skagway is dying.
When, in 187a, the German emperor awarded San Juan
Island to the United States, similar fearsome tales were tokl
respecting the forts that would be erected there to threaten
Victoria. Now, forty years later, the forts are still non-
existent ; the barracks that sheltered the British and Ameri-
can troops during the joint occupation are sunk in decay,
and a few hundred people make a bare living on the island
over which two great nations nearly went to war.

So k>ng as it remained unsettled the Alaska boundary
was a problem that might at any moment have involved
the two countries in war. While the territory lying be-
tween the true line and the awarded line has a certain
value, it has not, thus far, yiekled any considerable wealth,
and, constituted as the American portion of the tribimal
was, the awarded line-^with one exception— probably repre-
sents the maximum that Lord Alverstone could obtain. The
exception is the line in the valley of the Chilkat River.
Here the modus vivendi line was abandoned, and the awarded

!■

\l'

r i

958 BOUNDARY DISPUTES AND TREATIES

Une WM drawn nearly twenty miles north of it, although
Canada had had a North<Weet Mounted Pblice poet there
einoe 1899. No reaeon haa been anigned for this abandon-
ment, but it has been suggested that Lord Alventone, when
marking the pealcs in the boundary, forgot that there was
a modus vhmdi line at this point, and that his American
ooJk^gues did not consider it necessary to draw his atten-
tion to it.

Taking the questkm as a whole, it was abstdutely neces*
sary that it should be settled ; with tiw exception mentioned,
it ooukl not have been settled without practically all the con-
cessions that were made, and Lord /Jverstone is therefore
entitled to much more lenient judgment than he has generally
received. So mudi cannot be said for the United States
members <rf the tribun&L

MMid W T. Md A. COMTMU, NaMftM Bh M4Mr
M *• Idkbiffli Uafcnnhr Pn*

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